abstract: “judicial federalism,” younger v. harris mitchum v. … · of class sufficient to...
TRANSCRIPT
Abstract:
This paper, coining the now-common term, “judicial federalism,”
examined the relation between Younger v. Harris and Mitchum v. Foster,
and considered an extreme example of Younger dismissal, Rizzo v. Goode.
Through this prism the paper pointed out that what was interesting about
the Burger Court was procedure, not substance, and that the Court was
embarked on what has turned out to be the Supreme Court's long and
continuing retreat from Warren Court values.
THE NEW JUDICIAL FEDERALISM*
29 Stan. L. Rev. 1191 (1977)
Louise Weinberg**
Copyright © 1977 by Louise Weinberg
By the spring of 1976, court ordered desegregation of northern public schools had become a major election issue. The nation's two great parties were weighing the inclusion of antibusing planks in their platforms. The President had directed the Attorney General to "look out for an appropriate and proper case" to put before the Supreme Court for reconsideration of its position on court-ordered school desegregation.1 During the next fortnight the Attorney General seemed to vacillate between the views of the Solicitor General, which coincided with the President's, and those of the head of the Justice Department's Civil Rights Division, which did not. Then, unaccountably, there seemed a failure of nerve: Government briefs were not filed, and at the 11th hour the Court pealed forth a carillon of denials of certiorari.2
It might then have been supposed that the school desegregation cases would occupy a fairly secure position, despite the fact that the Court had recently imposed significant limits upon the scope of federal
*Copyright © 1977 by Louise Weinberg.
**A.B. 1953, Cornell University; J.D. 1969, LL.M. 1974, Harvard
University, Associate Professor of Law, Suffolk University; Visiting Associate
Professor of Law, Stanford University.
1. New York Times, May 19, 1976, at 1. col. 4.
2. Certiorari was denied on June 5, 1976, 44 U.S.L.W. 3179, in Morgan v.
Doherty, 530 F.2d 431 (1st Cir. 1976); Morgan v. Boston Home & School Ass'n.,
530 F.2d 401 (1st Cir. 1976); Morgan v. White, 530 F.2d 401 (1st Cir. 1976);
Morgan v. McDonough, No. 75-1145 (1st Cir. 1976). See Busing Politics, N.Y.
Times, June 5, 1976, at 24, col. 2.
desegregation decrees.3 But, the election over, the Court has again granted certiorari in two school desegregation cases of some importance,4 apparently to consider further limits on the scope of federal desegregation decrees. And it has vacated a comprehensive desegregation plan for Austin, Texas, apparently requiring a clearer showing of discriminatory intent.5 The latter showing increasingly has been required in civil rights cases.6 Section 1983,7 it appears, will protect against official design, but not against official neglect.
3. Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976) (federal
trial court may not order second desegregation of school district previously
desegregated under court order without fresh proof of discriminatory intent);
Milliken v. Bradley, 418 U.S. 717 (1974) (interdistrict remedy for school
segregation impermissible absent showing of intentional discrimination on the
part of each district within the scope of the decree).
4. Dayton Bd. of Educ. v. Brinkman, 97 S.Ct. 782 (1977); Milliken v.
Bradley, 97 S.Ct. 380 (1976).
5. Austin Independent School Dist. v. United States, 97 S.Ct. 517 (1977)
(remanded for reconsideration in light of Washington v. Davis, 426 U.S. 229
(1976)); see Metropolitan School Dist. of Perry Township v. Buckley, 97 S.Ct.
800 (1977) (Indianapolis) (judgment affirming desegregation decree ordering
busing of black children to suburbs vacated, although state was shown to have
confined public housing projects to black area and to have set up school district
so as to avoid consolidation of black and white areas despite countrywide
governmental power).
6. Washington v. Davis, 426 U.S. 229 (1976) (disproportionate adverse
impact on racial minority insufficient to authorize relief absent showing of
discriminatory purpose in public employees' equal protection suit under fifth
amendment due process clause); see Village of Arlington Heights v. Metropolitan
Hous. Dev. Corp., 97 S.Ct. 555 (1977) (zoning regulations with disproportionate
racial impact sustained absent proof of discriminatory intent); Rizzo v. Goode,
423 U.S. 362 (1976) (officials not liable for negligent failure to supervise
discriminatory police misconduct); notes 3 & 5 supra. But see Castaneda v.
Partida, 97 S.Ct. 1272 (1977) (showing of racial disparities in selection of grand
jurors shifts burden to defendant custodian in habeas case to prove lack if
discriminatory intent on part of jury selection commissioners); Hills v.
Gautreaux, 425 U.S. 284 (1976) (metropolitan remedy permissible when
discriminatory intent shown only for inner city, when defendant federal housing
authority is empowered by Congress to order metropolitan relief); Keys v. School
Dist. No. 1, 413 U.S. 189 (1983) (showing of racial disparities in assignments of
schoolchildren to school shifts burden to school board to show lack of
discriminatory intent); Wright v. Council of Emporia, 407 U.S. 451 (1972)
(effect, not purpose, is focus of inquiry); Griggs v. Duke Power Co., 401 U.S.
424 (1971) (disproportionate adverse impact on minority sufficient to shift
The broader perspective on these developments must include not only the desegregation cases but the whole range of public interest litigation in federal courts. It is now widely noted8 that a counterassault on federal judicial power has been taking place in the Supreme Court, with real casualties.9 Inevitably, the old institutional struggle between the
burden of proof to employer to show business necessity for disputed practice in
employees' suite under Title VII); Monroe v. Pape, 365 U.S. 167, 187 (1961)
(civil rights defendants will be presumed to intend the consequences of their
acts).
7. Civil Rights Act of 1871, § 1, 41 U.S.C. § 1983( 1970). See note 96
infra.
8. 123 CONG. REC. S95, 201-05 (daily ed. Jan. 10, 1977) (remarks of Sen.
Mathias). Officials of the American Civil Liberties Union, Consumers Union
and seven other public interest groups distributed a letter at a national conference
of judges and lawyers held in St. Paul, Minnesota, on April 7, 1976, under the
sponsorship of the American Bar Association and the Association of State Chief
Justices, arguing that the Supreme Court has "thwarted the promise of the
Constitution" by drastically limiting citizens' access to the federal courts. N.Y.
Times. Apr. 7, 1976, at 11. col. 1. See Hearings Before the Subcomm. on
Constitutional Rights of the Senate Comm. on the Judiciary, 94th Cong., 1st Sess.
(1976) (statement of Sen. Tunney) (arguing that participants in the St. Paul
conference had failed "to discuss the broader issues about access to the judicial
system"). On October 9, 1976, the Board of Governors of the Society of
American Law Teachers issued a memorandum accusing the Burger Court of a
double standard in raising procedural barriers in federal litigation to the
disadvantage of public interest cases. The Chief Justice replied to these charges
at a news conference in Washington, pointing out the increased caseloads of
federal courts. N.Y. Times, Oct. 10, 1976, at 31, col. 1. The press has been
unusually alert to these developments. See e.g., TIME, July 12, 1976, at 36;
Lewin, Avoiding the Supreme Court, N.Y. Times, Oct. 17, 1976, § 6 (Magazine),
at 31; Lewis, The Doors of Justice, N.Y. Times, Mar. 28, 1977, at 29, col. 5, N.Y.
Times, Apr. 11, 1976, § 4, at 9, col. 1.
9. For example, access to federal courts has been limited in class actions.
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) (notice in class action for
damages must be sent at plaintiff's expense to all reasonably identifiable
members of the class); O'Shea v. Littleton, 414 U.S. 488 (1974) (in injunction
suit named plaintiffs must present case or controversy between themselves and
defendants or they may not seek relief on behalf of themselves or any other
member of class); Zahn v. International Paper Co., 414 U.S. 291 (1973) (each
member of plaintiff class must meet $10,000 jurisdictional amount); Snyder v.
Harris, 394 U.S. 332 (1969) (in diversity class action, claims of class may not be
aggregated in determining existence of $10,000 jurisdictional amount). But see
Sosna v. Iowa, 419 U.S. 393, 402 (1975) (existence of class with continuing stake
in controversy saves case moot as to named plaintiff); Supreme Tribe of Ben-Hur
nation and the states has become part of this present battle; a new judicial federalism seems to be emerging, requiring deferences to state administration and state adjudication10 that only yesterday were thought unnecessary or unwise.11
v. Cauble, 255 U.S. 356 (1921) (diversity of citizenship of named representative
of class sufficient to ground diversity jurisdiction regardless of citizenship of
other class members).
Access to federal injunctive power also has been restricted. Alyeska
Pipeline Serv. Co. v. The Wilderness Soc'y. 421 U.S. 240 (1975) (federal courts
lack discretion to award attorney's fees in public interest actions for injunctive
relief). For other cases restricting access to federal injunctive power, see note 10
infra.
Access to federal habeas corpus similarly has been limited. Preiser v.
Rodriguez, 411 U.S. 475 (1973) (wrongs cognizable in federal habeas corpus
may not be remedied under Civil Rights Act). For other cases restricting access
to federal habeas corpus for state prisoners, see note 10 infra.
Denials of access to federal courts through imposition of court fees upon
indigents also have been approved. United States v. Kras, 409 U.S. 434 (1973)
($50 fee under Federal Bankruptcy Act upheld against challenge by indigent). A
much discussed line of cases splits on the constitutionality of state denials of
access to state courts based on fees. Compare Boddie v. Connecticut, 401 U.S.
371 (1971) and Griffin v. Illinois, 351 U.S. 12 (1956) (striking down the fees as
to indigents) with Orrwein v. Schwab, 410 U.S. 656 (1973) (sustaining the fee).
Standing also has been used to restrict access to federal courts. Simon v.
Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976) (indigents lack standing to
challenge charitable tax status of hospitals offering only limited services); Warth
v. Seldin, 422 U.S. 490 (1975) (broad range of plaintiffs lack standing to
challenger exclusionary zoning laws); United States v. Richardson, 418 U.S. 166
(1974) (taxpayer lacks standing to challenge concealment of part of governmental
budget). But see Singleton v. Wulff, 428 U.S. 106 (1976) (physicians may
challenge medicaid exclusion of abortions); Flast v. Cohen, 392 U.S. 83 (1968)
(taxpayer has standing to challenge federal grants to parochial schools).
10. Of greatest moment is National League of Cities v. Usury, 426 U.S.
833 (1976), striking down, for the first time since the 1930's, an act of Congress
under its commerce power as an impermissible intrusion upon state sovereignty
under the 10th amendment.
State law increasingly has been allowed to govern questions thought
preempted by the national lawmaking power. E.g., De Canas v. Bica, 424 U.S.
35 (1976) (state may regulate restrictions on employment of illegal aliens);
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974) (state may protect
unpatented trade secrets); Askew v. American Waterways Operators, Inc., 411
U.S. 325 (1973) (state may impose antipollution regulations upon merchant
vessels in territorial waters); Goldstein v. California, 412 U.S. 546 (1972) (state
may prosecute piracy of uncopyrighted recordings).
Unconstitutional standards governing federal obscenity prosecutions have
been held to be partially determined by local views, Miller v. California, 413 U.S.
15 (1973), and it is primarily for the states to say what equal protection of the
laws shall mean in the context of allocation of tax resources to the education of
schoolchildren, San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).
Neither the Civil Rights Act nor the due process clause of the 14th amendment
protects injury to reputation. Paul v. Davis, 424 U.S. 693 (1976). But see
Wisconsin v. Constantineau, 400 U.S. 433 (1971).
The 11th amendment, giving states sovereign immunity in federal courts,
has been reinvigorated in civil rights cases. Edelman v. Jordan, 415 U.S. 651
(1974). But see Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
The abstention doctrine also has been revived. Boehning v. Indiana State
Employees' Ass'n., 423 U.S. 6 (1976); Askew v. Hargrave, 401 U.S. 476 (1971);
see note 11 infra.
Federal injunctions against pending state proceedings, have been restricted.
Younger v. Harris, 401 U.S. 37 (1972) ("Our Federalism" requires denial of
injunctive relief from prosecution under unconstitutional statute); see Jiudice v.
Vail, 97 S.Ct. 1211 (1977) (federal injunction against state contempt proceeding
may not issue although proceeding itself is challenged on due process grounds);
Hicks v. Miranda, 422 U.S. 332 (1975) (state may deprive federal court of
jurisdiction in action for injunction against threatened prosecution by filing
prosecution before proceedings of substance on the merits take place in the
federal court); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ("Our Federalism"
bars federal injunction against state civil nuisance proceeding under
unconstitutional statute, although the Anti-Injunction Act would not); Samuels v.
Mackell, 401 U.S. 66 (1972) (federal declaratory relief against state tax barred by
"Our Federalism). But see Gerstein v. Pugh, 420 U.S. 103 (1975) (injunction
available where federal defense could not be raised in state prosecution); Gibson
v. Berryhill, 411 U.S. 564 (1973) (injunction possible where state forum biased).
See generally notes 87-147 infra and accompanying text.
Federal injunctions against state officials have been restricted in
availability and narrowed in scope. Rizzo v. Goode, 423 U.S. 362 (1976)
(principles of federalism bar injunction ordering improved grievance machinery
in police misconduct case); O'Shea v. Littleton, 414 U.S. 488 (1974) (credible
threat of future harm to named plaintiff, as well as to class, must be shown to
warrant federal injunction). Taken together, O'Shea and Rizzo render federal
courts powerless to enjoin widespread police misconduct in most cases. In Rizzo
and in other cases the scope of federal decrees has been strictly confined to the
violation proved. Metropolitan School Dist. of Perry Township v. Buckley, 97
S.Ct. 800 (1977); Austin Indep. School Dist. v. United States, 97 S.Ct. 17 (1976);
Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976); Milliken v.
In the recent case of Rizzo v. Goode,12 the Supreme Court has fashioned a crude weapon for use in that battle, one capable of an unacceptable degree of destruction. There, the Supreme Court struck down a federal injunction in a police misconduct case. While relying in part upon limits on the scope of federal equity and in part on insufficiency
Bradley, 418 U.S. 717 (1974). Finally, in injunction cases heavy new burdens of
proof have been placed on civil rights plaintiffs. See notes 5 & 6 supra.
Civil rights actions for damages also have been weakened by recognition
of new immunities defenses. E.g., Imbler v. Pachtman, 424 U.S. 409 (1976)
(absolute immunity for state prosecutors within scope of their discretion). Other
absolute official immunities were recognized previously. Pierson v. Ray, 386
U.S. 547 (1967) (judges); Tenney v. Brandhove, 341 U.S. 367 (1951)
(legislators). Other officials recently have been afforded qualified defenses of
good faith. E.g., O'Connor v. Donaldson, 422 U.S. 563 (1975) (state hospital
officials); Wood v. Strickland, 420 U.S. 308 (1975) (schoolteachers); Scheuer v.
Rhodes, 416 U.S. 232 (1974) (governor and high state executive officials). The
qualified immunity of good faith and probable cause enjoyed by police officers in
civil rights damage actions was recognized by the Warren Court. Pierson v. Ray,
386 U.S. 547 (1967). For discussion of these and the doctrines of municipal and
sovereign immunity, see generally notes 210-59 infra and accompanying text.
Federal habeas corpus for state prisoners also has been eroded. Compare
Stone v. Powell, 428 U.S. 465 (1976) (when state provides opportunity to raise
the issue, claims that evidence seized in violation of the fourth amendment
should have been excluded are not cognizable in federal habeas corpus) and
Francis v. Henderson, 425 U.S. 536 (1976) (state prisoner may not relitigate in
federal habeas corpus issues fairly litigated in the state prosecution) with Fay v.
Noia, 372 U.S. 391 (1963). Nevertheless, state prisoners seeking release may not
employe the Civil Rights Act, but must rely on habeas corpus. Preiser v.
Rodriguez, 411 U.S. 475 (1973).
11. E.g., Zwickler v. Koota, 389 U.S. 241, 248 (1976); Battett v. Bullitt,
377 U.S. 360, 375-90 (1964); see Damico v. California, 389 U.S. 416 (1967)
(exhaustion of state administrative remedies unnecessary); McNeese v. Board of
Educ. 373 U.S. 668 (1963) (exhaustion of state judicial remedies unnecessary in
civil rights cases); Fay v. Noia, 372 U.S. 391 (1963) (exhaustion of state
remedies unavailable at time of petition not required for access to federal habeas
corpus for state prisoner; state procedural default no bar unless prisoner made
conscious waiver of known right); Monroe v. Pape, 365 U.S. 167 (1961)
(availability of state remedy does not mean that trespassing officials did not act
under color of state law for purposes of liability under the Civil Rights Act);
Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 LAW &
CONTEMP. PROB. 216, 230 (1948) (abstention inappropriate in civil rights cases);
Note, Federal question Abstention: Justice Frankfurter's Doctrine in an Activist
Era, 80 HARV. L. REV. 604 (1967).
12. 423 U.S. 362 (1976).
of proof of intent,13 the Court also based its decision on one further factor, and in so doing poses a far greater challenge to federal civil rights jurisdiction — the desegregation cases included — than is posed by recent cases on intent and scope of relief. By a coup de main the Rizzo Court transplanted the doctrine of Younger v. Harris,14 which since 1971 has blocked federal injunctions against state proceedings, to the much more complex and sensitive area of federal injunctions against state officials.15 As a little reflection will show, a defense applicable in both contexts covers the board: It could block all federal judicial challenges to state action. The new defense has been variously tagged "Our Federalism,"16 "principles of federalism,"17 or "equity, comity, and federalism."18 But whatever its name this new19 door-closing mechanism threatens the continued vitality of those institutions of modern judicial federalism by which national standards are imposed upon the states in the matter of civil rights: the Civil Rights Act of 1871,20 Ex parte Young21 and the second Brown v. Board of Education.22
This Essay reviews the foundations of federal judicial power against the states; considers previous attempts to limit the exercise of that power; and examines the new defense — its origins in Younger, its application in Rizzo, and its potential for application in other civil rights cases. It
13. These rationales were developed in part in the school desegregation
cases, see note 5 supra, and in the jury selection cases, e.g., Castaneda v. Partida,
97 S.Ct. 1272 (1977) (grand jury); Carter v. Jury Comm'n., 396 U.S. 320 (1970)
(petit jury). In addition, see Wright v. Rockfeller, 376 U.S. 52 (1964)
(congressional apportionment).
14. 401 U.S. 37 (1971).
15. Rizzo v. Goode, 423 U.S. 362, 380 (1976).
16. Younger v. Harris, 401 U.S. 37, 44 (1971).
17. Rizzo v. Goode, 423 U.S. 363, 380 (1976). Notions of federalism of
necessity always have characterized discussions of collateral federal review of
state action. See, e.g., Ex parte Young, 209 U.S. 130, 166-68 (1908). Similar to
the Younger defense was the doctrine of Douglas v. City of Jeannette, 319 U.S.
157 (1943), employing equitable restraint concepts to bar federal injunctions not
barred by the Anti-Injunction Act, 28 U.S.C. § 2283 (1970).
18. Mitchum v. Foster, 407 U.S. 225, 243 (1972).
19. The defense is "new" in a technical sense. See notes 89 & 108 infra.
20. Civil Rights Act of 1871, § 1, 42 U.S.C. § 1983 (1970); 28 U.S.C. §
1343(3) (1970). See note 96 infra.
21. 209 U.S. 123 (1908).
22. 349 U.S. 294 (1955).
concludes both that overriding national policy requires continued access to federal remedial power at least for cases that, like the school desegregation cases, raise issues of discrimination, and that Congress should strengthen federal civil rights jurisdiction against the assault tentatively advanced in Rizzo.
I. ORIGINS AND SIGNIFICANCE OF INSTITUTIONS OF MODERN
JUDICIAL FEDERALISM
A. Federal Jurisdiction and the Civil War: The Original
Understandings
There is an old American tradition, almost Jeffersonian in its nobility and localism, of hostility to federal equity. Early critics of federal equitable remedial power may have seen in it the apparition of the prerogative courts of the English kings.23 But their hostility had a more substantial basis.
Given federal equity, the losing party in a lawsuit in state court could eschew direct attack and come into federal court for an injunction against the state proceeding.24 Thus, the very existence of federal equity could lay open even the highest state courts to review and possible reversal, not at the hands of the august national tribunal, but collaterally, almost embarrassingly, by any ordinary federal trial judge. The states would not have agreed to such an arrangement at the outset.25
23. Beale, Equity in America, 1 CAMBRIDGE L.J. 21, 23 (1921); von
Moschzisker, Equity Jurisdiction in the Federal Courts, 75 U. Pa. L. Rev. 287,
289 (1927) ("[T]he fundamental explanation is probably to be found in the fact
that the colonists regarded equity as an appanage of the Crown's prerogative, and,
therefore, inimical to their individual liberties."). On the "prevailing prejudices
against equity jurisdiction" at the time of the enactment of the Anti-Injunction
Act, see Toucey v. New York Life Ins. Co., 314 U.S. 118, 131 (1941); F.
MAITLAND, EQUITY: A COURSE OF LECTURES 10 (Brunyate ed. 1936).
24. Injunctive restriction of common law jurisdiction was at the heart of
the Coke-Ellesmere controversy. See generally T. PLUCKNETT, A CONCISE
HISTORY OF THE ENGLISH COMMON LAW 627 (2d ed. 1936); F. MAITLAND, supra
note 23, at 9.
25. See Edelman v. Jordan, 415 U.S. 651 (1974); Ex parte Young, 209
U.S. 123, 175-76 (1908) (Harlan, J., dissenting) ("I cannot suppose that the great
men who framed the Constitution ever thought the time would come when a
subordinate Federal court...would... assume to deprive a state of the right to be
represented in its own courts by its regular law officer."); C. WARREN, THE
SUPREME COURT IN UNITED STATES HISTORY 91 (1922). But see THE
FEDERALIST No. 82 (A. Hamilton) ("[B]ut could an appeal be made to lie from
Even more significantly, the states themselves might conceivably be sued in federal courts.26 Given federal jurisdiction in equity, state gov- ernment would then fall subject to federal decrees. Here would be something very like King George, ruling from something very like Privy Council, with branch office.27
These twin apprehensions — that federal injunctions could issue against both state judicial proceedings and state executive actions — may explain why the first Judiciary Act28 included no grant of general jurisdiction to federal trial courts for cases arising under federal law.29 Constitutional questions and such other issues of federal law as might arise would be decided in the state tribunals in the ordinary course of litigation. If there was to be federal judicial supervision of the sovereign states it would have to be on writ of error in the Supreme Court alone.30
The twin embodiments of these early understandings were the Federal Anti-Injunction Act,31 generally forbidding a federal trial court from interfering by injunction with state judicial proceedings, and the 11th
the state courts, to the subordinate federal judicatories?... The following
considerations counsel the affirmative.") Hamilton, however, was considering
collateral review rather than injunctive interference with or prevention of the
original state proceeding.
26. THE FEDERALIST No. 81 (A. Hamilton) ("[I]n cases in which a state
might happen to be a party, it would ill suit its dignity to be turned over to an
inferior tribunal. . . ."). Chief Justice Marhsall's attempt in Chisholm v. Georgia,
2 U.S. (2 Dall.) 419 (1793), despite the understandings Hamilton articulates to
approve federal jurisdiction over a state as party defendant, led to ratification of
the amendment within 5 years. See generally Monaco v. Mississippi, 292 U.S.
313, 322-29 (1934).
27. See 3 W. BLACKSTONE COMMENTARIES 49. Federal judges were
among the few federal officials with territorially defines local authority and
shared only with military officers the power to govern by decree. But such
power would depend in turn upon jurisdiction in equity over state governmental
agents or instrumentalities. See text accompanying note 48 infra.
28. 1 Stat. 73 (1789).
29. Apart from the abortive "Law of the Midnight Judges," 2 Stat. 89
(1801), repealed, Act of 1802, 2 Stat. 156, no general federal question
jurisdiction was granted federal trial courts until the Act of 1875, 18 Stat. 470.
30. Judiciary Act of 1789, § 25, 1 Stat. 783. See generally Martin v.
Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 340-42 (1816); The federalist No. 82
(A. Hamilton); Frankfurter, Distribution of Judicial Power Between United States
and State Courts, 13 CORNELL L.Q. 499, 507-15 (1928).
31. 28 U.S.C. § 2283 (1970). See note 94 infra.
amendment to the Constitution,32 forbidding federal trial courts from taking jurisdiction over a state as party defendant.
These were the main outlines of judicial federalism in the antebellum period. But the limits on the exercise of federal judicial power built into the federal system a dangerous softness. A day might come when state judges and officials would refuse to accede to the Supreme Court's view of the Constitution. In that crisis, how could federal standards be imposed upon the states? Even the seemingly unimpeachable proposition that the state courts must obey a Supreme Court mandate in a particular case had to be reaffirmed in successive generations.33 What, then, of a more widespread reluctance among the states to enforce or effectuate national policy? Could such a reluctance, as a practical matter, be controlled by mandates issuing on writs of error from the Supreme Court?
Viewed in this light, the Civil War settled the fundamental constitu- tional question whether the Union could impose national standards upon the states. This blood-won power was to be deployed in the case just put: one of widespread reluctance to enforce or effectuate national policy. Confronted with that crisis, the Reconstruction Congresses rejected the original compromise.34 Federal trial courts were given jurisdiction in habeas corpus to test the legality of detentions of state prisoners,35 jurisdiction in cases removed from state courts by persons claiming they could not obtain enforcement of their civil rights there,36 jurisdiction in cases alleging state deprivations of civil rights — in equity
32. U.S. CONST. amend. XI. See note 94 infra.
33. E.g., Cooper v. Aaron, 358 U.S. 1 (1958); Cohens v. Virginia, 19 U.S.
(6 Wheat.) 264 (1982); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).
See generally Warren, Legislative and Judicial Attacks on the Supreme Court of
the United States: A History of the Twenty-Fifth Section of the Judiciary Act, 47
AM. L. REV. 1 (1913).
34. "Sensitiveness to 'states rights', fear of rivalry with state courts and
respect for state sentiment, were swept aside by the great impulse of national
feeling born of the Civil War. Nationalism was triumphant. . . ." F.
FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT 64 (1927).
For a sensitive early lay account of the constitutional history of the 1860's and
1870's, see W. DUNNING, ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION
(1898).
35. Act of 1867, 14 Stat. 385. This jurisdiction is exercised today under
28 U.S.C. § 1331 (1970).
36. Civil Rights Act of 1866, § 3, 14 Stat. 27. This jurisdiction is
exercised today under 28 U.S.C. § 1443(1) (1970).
as well as at law37 — and at last, in 1875, jurisdiction in cases arising under federal law generally.38
It is not our task to review here the fate of these achievements of Reconstruction insofar as positions then taken in the Supreme Court rendered them ineffective to secure federal judicial enforcement of civil rights. As far as civil rights were concerned the powers won lay tragically dormant until our own time.39 But the massive restructuring of judicial federalism during Reconstruction had almost immediate impact upon ordinary private litigation. The 14th amendment opened to Supreme Court review the internal procedures of state courts,40 and the new federal
37. Civil Rights Act of 1871, § 1, 17 Stat. 13. This jurisdiction is
exercised today under 42 U.S.C. § 1983, 28 U.S.C. § 1343(3) (1970).
38. Act of 1875, § 1, 18 Stat. 470. This jurisdiction is exercised today
under 28 U.S.C. § 1331 (1970).
39. The legal causes of this disuse are various. The "state action"
requirement established in the Civil Rights Cases, 109 U.S. 3 (1883), taken in
conjunction with the 11th amendment as it was understood prior to Ex parte
Young, 209 U.S. 123 (1908), was a chief reason for the paucity of reported cases
prior to 1908. Obstacles remaining after 1908 included judicial interpretations of
the "color of law" language in § 1983, which excluded cases for which state
remedies existed, requirements of exhaustion of state remedies, reluctance to
award general damages in the absence of special damages, and confusion about
jurisdictional amount. See generally Gressman, The Unhappy History of Civil
Rights Legislation, 50 Mich. L. Rev. 1323 (1952); text at notes 48-55 infra.
The contemporary federal class action rules have made a difference, not
only because the possibility of class relief and substantial fees encourages the
development of a vigorous public interest bar but also because individual
grievances often cannot be remedied effectively through individual actions. H.
FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 80-81 (1973) (lengthy and
expensive individual litigation ineffective to secure immediate housing even
though Congress is now understood to have power under § 1982 to reach private
discriminations; only class suits and administrative remedies are employed
effectively).
40. E.g., Pennoyer v. Neff, 95 U.S. 714 (1877) (Supreme Court review
under due process clause of state service of process in diversity case in which the
federal question arose as replication to a defense). Cf. Barron v. Mayor of
Baltimore, 32 U.S. (7 Pet.) 242 (1833) (on writ of error from Court of Appeals of
Maryland, Supreme Court cannot review state substantive violation of fifth
amendment due process clause, the Bill of Rights limiting only the national
government). In Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), the
Court per Justice Story did pass on the validity of a state's summary escheat of
jurisdictional grants could subject those procedures to collateral review in federal trial courts as well. In the same way, the notion of "due process" as protecting against arbitrary or confiscatory state regulation of business eventually would bring state executive action before both the Supreme Court and the federal trial courts.41
It was in this business context rather than that of civil rights that the Supreme Court was compelled to work out the effect of the new grants of judicial power upon the surviving embodiments of the antebellum understandings; the Anti-Injunction Act and the 11th amendment. These venerable restrictions on federal equity, barring injunctions against state judicial proceedings and state executive actions, seemed intended to assure the states of total noninterference from the federal trial judiciary. In definitively dealing with both the Act and the amendment as they were affected by the new grant of federal question jurisdiction and the 14th amendment, the great case of Ex parte Young42 cleared broad avenues for federal trial court interference with state government, and in so doing drew the lines of modern judicial federalism.
B. From Ex parte Young to Brown v. Board of Education
Ex parte Young arose when railroad interests sought a federal injunction restraining the Attorney General of Minnesota from enforcing that state's allegedly confiscatory rate regulations. The 14th amendment was held to provide the federal question necessary to support the jurisdiction of the trial court. The Anti-Injunction Act was held not an issue in the case, because Attorney General Young had not filed the state enforcement proceeding until the day after the trial judge issued the stay order;43 the Act applied only to pending proceedings, not to merely threatened ones.
But the big issue in the case was whether or not the suit was actually one against the state of Minnesota and thus barred by the 11th amendment.44 Ex parte Young laid down the principle that a federal court
property but had to do so under principles of general common law. See Erie R.R.
Co. v. Tompkins, 304 U.S. 64 (1938).
41. E.g., Ex parte Young, 209 U.S. 123 (1908) (injunction against
threatened state violation of 14th amendment). The first case interpreting the
14th amendment in this way came relatively late, however, Chicago B. & Q. R.R.
v. Chicago, 166 U.S. 226, 241, (1897).
42. 209 U.S. 123 (1908).
43. Because this subsequent filing violated the stay order, Young was held
in contempt; the case arose in part on writ of habeas corpus. Id., at 126.
44. "The Judicial Power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the
has power, despite the amendment, to override state sovereignty upon a showing of state unconstitutionality. Because the action was not against the state as party of record but only against the official, upon a showing that the defendant had violated the plaintiff's constitutional rights, he was "stripped of his official or representative character and ... subjected in his person to the consequences of his individual conduct."45
This position cast a very bright light indeed upon the future of the Civil Rights Act of 1871.46 That legislation had been intended to provide a forum for adjudication of grievances against the states, and the Supreme Court had held that "state action" was a necessary allegation of a civil rights complaint.47 Ex parte Young made a complaint under the Civil Rights Act begin to seem a practical possibility, because it cut a swath through the sovereign immunity of the states in federal courts.
But the position horrified the first Justice Harlan. In a prescient dissent he wrote:
This principle, if firmly established, would work a radical change in our governmental system. It would inaugurate a new era in the American judicial system and in the relations of the National and state governments. It would enable the subordinate Federal Courts to supervise and control the official action of the States as if they were 'dependencies' or provinces.48
Of course, this is precisely what has happened; Justice Harlan's formulations could be used as well by current critics of federal judicial activism. But a long road remained to be traveled between Ex parte Young and present exercises of federal injunctive power in civil rights cases.
United States by Citizens of another State, or by Citizens or subject of any
Foreign State." U.S. CONST. amend. XI. Hans v. Louisiana, 134 U.S. 1, (1890),
construed the amendment to cover suits by a citizen of the same state.
45. 209 U.S. at 160. Cf. Osborn v. Bank of the United States, 22 U.S. (9
Wheat.) 738 (1824) (11th amendment no bar to federal suit where state is not a
party of record).
Under Ex parte Young, the state remains immune in actions for monetary
relief to be paid from the state treasury rather than by the defendant official.
Edelman v. Jordan, 415 U.S. 651 (1974). But see Fitzpatrick v. Bitzer, 427 U.S.
445 (1976) (Congress may authorize such relief under its 14th amendment
enforcement powers, which override the 11th amendment).
46. Civil Rights Act of 1871, § 1, 42 U.S.C. § 1983(1970), 28 U.S.C. §
1343(3) (1970), quoted in text accompanying note 96 infra.
47. The Civil Rights Cases, 109 U.S. 3 (1883).
48. 209 U.S. at 175.
After Ex parte Young, release of that power still would require expansive constitutional interpretation,49 particularly of the equal protection clause of the 14th amendment,50 hospitable interpretation of the Civil Rights Act,51 a broad view of the scope of federal equity,52 and federal judicial willingness to undertake these long-avoided tasks.53
It was not until the Warren Court era that the positions taken on these issues propelled the nation into a second Reconstruction, and federal injunctive power came of age.54 The question of the scope of federal injunctive power against state officials, in fact, was put squarely for the first time when, in the second Brown v. Board of Education (Brown II),55 the Supreme Court ordered briefs and argument on the issue. Having decided the state constitutionally could not maintain segregated public
49. Most importantly, Home Tel. & Tel. v. City of Los Angeles, 227 U.S.
278 (1913) ("state action" requirement of complaint alleging violation of 14th
amendment is satisfied although state itself outlaws the violation complained of).
50. Compare Brown v. Board of Educ., 347 U.S. 483 (1954) and Sweatt
v. Painter, 339 U.S. 629 (1950) (separate law school for blacks maintained on
campus of celebrated law school could never provide an equal educational
opportunity) with Plessy v. Ferguson, 163 U.S. 537 (1896) and Vorchheimer v.
Philadelphia may maintain sexually segregated high schools although female
students are thus denied opportunity to study at Philadelphia's celebrated Central
High School).
51. Monroe v. Pape, 365 U.S. 167 (1961) (state official's acts held "under
color of law" within meaning of § 1983 although state would prohibit conduct at
issue; § 1983 action does not require exhaustion of state remedies; no allegation
of specific intent necessary).
52. Brown v. Board of Educ., 349 U.S. 294 (1955) (federal trial court has
power and duty to administer desegregation of state public schools and may draw
upon broad inherent powers, citing antitrust cases).
53. It is well for this Court to practice self-restraint and discipline in
constitutional adjudication, but ... [n]ational respect for the courts is more
enhanced through the forthright enforcement of those rights rather than by
rendering them nugatory through the interposition of subterfuges." Baker v.
Carr, 369 U.S. 186, 262 (1962) (Clark, J., concurring) (reapportionment of state
legislature may be ordered despite "political question" doctrine).
54. See Pollak, The Legacy of Earl Warren, 88 HARV. L. REV. 8 (1974) (in
memoriam).
55. 349 U.S. 294 (1955).
schools,56 the Supreme Court faced the necessity of providing remedial guidelines.
In Brown II, the Court decided in a straightforward way that federal trial courts would administer school desegregation in this country. The Court quite accurately sketched out the pattern that modern federal equitable intervention would follow for decades to come. It was to be, and has turned out to be, the very sort of governance by federal trial judges that the first Justice Harlan had so despairingly foreseen in Ex parte Young.57
Long lines of power flow from the Civil Rights Act, Ex parte Young and Brown II, that today enable federal trial judges to supervise the day-to-day business of local governmental agencies,58 school boards, hospitals, police departments, prisons. In some cases this supervision takes the mild form of a court order requiring local officials to devise a plan for their own governance, to be implemented on threat of contempt.59 In cases like the Boston school desegregation case,60 however, the district judge has had to take charge and govern from day to day by decree, according to plans laboriously formulated by the court itself, often in consultation with court-appointed experts. Under Brown II, the trial judge retains jurisdiction of the controversy;61 the parties may return for instructions, modification or to complain of backsliding.62 Meeting interminably with officials, within the jurisdiction invoked by the controversy, the federal judge rules the school system like the governor of some colonial dependency.63 The stand taken by Congress in the Civil Rights Act of 1871, and by the Supreme Court in Ex parte Young — that there must be a reserve of power over the states in federal trial courts — is today a dynamic principle of national policy.
56. Brown v. Board of Educ., 347 U.S. 483 (1954).
57. See text accompanying note 48 supra. Some of the characteristics of
federal equitable intervention are outlined in the text accompanying notes 58-61
infra.
58. See generally Weinberg, The New Meaning of Equity, 28 J. LEGAL
EDUC. 532 (1977) (written 1974).
59. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976).
60. Morgan v. Hennigan, 379 F.Supp. 410 (D. Mass. 1974), aff'd sub nom.
Morgan v. Kerrigan, 529 F.2d 580 (1st Cir. 1974), cert. denied, 421 U.S. 963
(1975).
61. 349 U.S. at 299.
62. See generally O. Fiss, Injunctions 415-81 (1972).
63. See text accompanying note 48 supra.
But federal judicial resources began to be spread thin as other impressive expansions of federal jurisdiction occurred in the Warren Court era,64 notably in civil rights actions for damages under Monroe v. Pape,65 and in postconviction relief for state prisoners under Fay v. Noia.66 And a real explosion in federal litigation occurred after the federal rules governing class actions were revised in 1966,67 with implications that could not then have been fully perceived.68 As federal remedies became increasingly potent, interest in litigation heightened; in the sympathetic political climate of the time, a vigorous public interest bar rapidly emerged. Funded in part by percentage fees from class monetary recoveries,69 in part by such architects of civil rights strategy as the
64. Statutory jurisdictional grants with significant impact included the
civil Rights Act of 1964, 42 U.S.C. §§ 1971, 1975a-1975d, 2000a to 2000h-6
(1970), and the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3619, 3631 (1970).
Expansive reinterpretation of existing jurisdictional grants was also a
contributing factor. E.g., Illinois v. City of Milwaukee, 406 U.S. 90 (1972),
interpreting 28 U.S.C. § 1331 (1970); Jones v. Alfred H. Mayer Co., 392 U.S.
409 (1968), interpreting 42 U.S.C. § 1981 (1970). For judicial creation of new
private rights of action under federal law, see e.g., Biven v. Six Unknown Named
Agents, 403 U.S. 388 (1971) (fourth amendment); Moragne v. States Marine
Lines, Inc., 398 U.S. 375 (1970) (general maritime law); J.I. Case Co. v. Borak,
377 U.S. 426 (1976) (securities regulations).
65. 365 U.S. 167 (1961).
66. 372 U.S. 391 (1963).
67. Fed. R. Civ. P. 23(b)(2), 23(b)(3).
68. The contemporary concern was apparently with the due process
difficulty of binding absentees with only a "spurious" connection to the named
representatives of the class; the draftsmen had made res judicata a fundamental
goal of the revision. See Kaplan, Continuing Work of the Civil Committee: 1966
Amendments of the Federal Rules of Civil Procedure (1), 81 Har. L. Rev. 356,
387-422 (1967); Development in the Law: Class Actions, 89 HARV. L. REV. 1318,
1394 (1976). Class actions, however, came to have a litigation-generating quality
beyond what could have been predicted from the provision alone of a meaningful
forum for binding adjudication in consumer and other suites. H. FRIENDLY, supra
note 39, at 118-20 ("Something seems to have gone radically wrong with a well-
intentioned effort.). See notes 69-71 infra and accompanying text.
69. Private corporate defendants became a particularly attractive target in
actions for damages; liability could exceed the value of the company and could
be expected to induce early and generous settlements, from which large
percentage fees would be approved by courts recognizing the public interest in
encouraging vigourous prosection of cases involving aggregated small claims.
See MANUAL FOR COMPLEX LITIGATION 11-12 (1973). But see Lindy Bros
NAACP Legal Defense Fund and the American Civil Liberties Union, and in part by court-awarded attorneys' fees to prevailing injunction plaintiffs on a new "private attorneys-general" theory,70, these advocates were to some extent free under the first amendment to contact potential clients, to inform them of their rights and to frame and employ class litigations to vindicate those rights.71
C. Judicial Federalism and Today's Supreme Court
With rising pressure on judicial resources and the end of the Warren Court, the Supreme Court increasingly has seemed engaged in what amounts to a jurisdictional counterrevolution.72 The Burger Court has sought assiduously to narrow access to federal jurisdiction, an endeavor in which "principles of federalism" are only one device.73 We witness today a turning away from tasks still unfinished: the swing of the pendulum and the closing door.
It is difficult to resist the conclusion that much of this federal door closing is not so much a function of enlightened federalism or even an evolving political environment as of crowded dockets.74 Ironically, in
Bldrs., Inc. v. American Radiator and Standard Sanitary Corp. 487 F.2d 181 (3d
Cir. 1973).
The problem was acute in actions under statutes providing minimum
damages for each claim, e.g., Katz v. Carte Blanche, 496 F.2d 747 (3d Cir. 1974)
(Truth in Lending Act, 15 U.S.C. § 1640(a)(1) (1970), $100 minimum), and
treble damages, School Dist. of Phila. v. Harper & Row Publishers, Inc., 267 F.
Supp. 1001 (E.D. Pa. 1967) (Clayton Act, § 4, 15 U.S.C. § 15 (1970)). See
generally Dawson, Lawyers and Involuntary Clients in Public Interest Litigation,
87 HARV. L. REV. 1597 (1974).
70. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968); see
Civil Rights Attorneys' Fees Awards Act of 1976, 90 Stat. 2641, amending 42
U.S.C. § 2000-5(k) (equal employment opportunities suites). See generally
Dawson, Lawyers and Involuntary Clients in PUblic Interest Litigation, 88
HARV. L. REV. 849 (1975).
71. NAACP v. Button, 371 U.S. 416 (1963).
72. See notes 9-11 supra.
73. 123 CONG. REC. S95, 202 (daily ed. Jan. 10, 1977) (remarks of Sen.
Mathias).
74. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 429 (1971)
(Black, J., dissenting. But note Justice Douglas' dissent in Warth v. Seldin, 422
U.S. 490, 519 (1975); "The mounting caseload of the federal courts is well
known. But cases such as this one reflect festering sores in our society. . . . We
are today far from facing an emergency. For in all frankness, no Justice of this
Court need work more than four days a week. . . . Cf. Thermtron Products, Inc.
view of much current thinking that public interest cases are a peculiarly appropriate province of federal jurisdiction,75 public interest litigation has been the poor relation on whom it has proved easiest for the Supreme Court to close the door.76 The federal consumer class action has been seriously impaired,77 and the environmental injunction action has been hard hit.78 State prisoners seeking release have lost remedies under the Civil Rights Act79 and have been remitted to habeas corpus, under which
v. Hermansdorfer, 423 U.S. 336 (1976) (district court could not decline to
exercise removal jurisdiction on the ground of crowded dockets).
The chief Justice has called attention to the problem of crowded dockets on
a number of occasions. See e.g., Remarks of Warren E. Burger, American Bar
Association, St. Louis, Mo. (Aug. 10, 1970). Congress has not been entirely
unresponsive to the problem. See, e.g., Federal Magistrates Act, 28 U.S.C. §§
631-639 (1970 & Supp. V 1975), as amended by Pub. L. No. 97-577 § 1, 90 Stat.
2729 (1976) (permitting federal magistrates to undertake a broad variety of
judicial tasks); Act of Aug. 12, 1976, Publ. L. No. 94-381, 90 Stat. 1119
(amending 28 U.S.C. § 2284 (1970) (contracting jurisdiction for 3-judge courts).
For the thinking of the current administration, see Bell Offers Plan to Ease
Burden of Courts and Avert Breakdown, N.Y. Times, Feb. 11, 1977, at A12, cols.
3-6.
75. H. FRIENDLY, supra note 39, at 68, 75; Chevigny, Section 1983
Jurisdiction: A Reply, 83 HARV. L. REV. 1352, 1356-61 (1970); Monaghan,
Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363 (1973).
76. See Brennan, State Constitutions and the Protection of Individual
Rights, 90 HARV. L. REV. 489, 498 (1977); note 8 supra.
77. See, e.g. Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) (notice to
class must be sent to all reasonably identifiable members at expense of the named
plaintiff); Zahn v. International Paper Co., 414 U.S. 291 (1973) (each class
member must meet jurisdictional amount requirement); Snyder v. Harris, 394
U.S. 332 (1969) (aggregation of claims not permitted to meet jurisdictional
amount).
78. The decision denying discretionary power to award attorneys' fees in
Alyeska Pipeling Service Co. v. Wilderness Soc'y., 421 U.S. 250 (1975), of
course, has been a serious depressant to public interest litigation for which
Congress has not specifically authorized fee awards.
79. Preiser v. Rodriguez, 411 U.S. 475 (1973) (challenges to duration of
confinement may not be remedied under the Civil Rights Act, even though only
administrative action of prison officials is compained of). But see Wolff v.
MCdonnell, 418 U.S. 539 (1974) (joinder with a claim for damages under § 1983
is permissible).
their rights have been whittled down.80 Civil rights class and individual relief have become substantially unobtainable in a variety of circumstances.81
Most significantly, the Burger Court has given renewed prominence to seemingly superseded expectations concerning the allocations of judicial power in a federal union. The first Justice Harlan had argued in his dissent in Ex parte Young that "a decent respect for the states" required us to assume that the state courts would "enforce every right secured by the Constitution."82 In that tradition, Justices Holmes,83 Frankfurter84 and
80. See, e.g., Stone v. Powell, 428 U.S. 465 (1976) (no access to federal
habeas corpus for state prisoner who raised fourth amendment defense in state
court); Francis v. Henderson, 425 U.S. 536 (1976) (no access to federal habeas
corpus for state prisoner who failed to raise constitutional defense in state court).
Stone v. Powell, strictly speaking, does not deprive the prisoner of fourth
amendment remedies that would have been available outside of habeas, but it
does carve back on rights in habeas. Francis v. Henderson, in sealing from
scrutiny prior state adjudications, is much more destructive, and in conjunction
with Preiser v. Rodriguez, 411 U.S. 475 (1973), seems to have overruled Fay v.
Noia, 372 U.S. 391 (1961), sub silentio.
81. The Alyeska decision has not had the impact in the civil rights context
it had elsewhere. For statutory authorizations of fee awards in civil rights cases,
see note 70 supra. A more significant curb on access to federal remedial power
in these cases has been made by rulings destroying the effectiveness of Fed. R.
Civ. P. 23(b)(2) in remedying threatened harm to an indeterminate class. See
O'Shea v. Littleton, 414 U.S. 488 (1974) (named plaintiffs must meet case or
controversy requirements and thus must prove threat to themselves individually).
This burden cannot be carried where the class is indeterminate. E.g., Rizzo v.
Goode, 423 U.S. 362, 373 (1976). Justiciability rulings have cut back on
access in a variety of settings. Simon v. Eastern Ky. Welfare Rights Org., 426
U.S. 26 (1976); Paul v. Davis, 424 U.S. 693 (1976) (no remedy for state official's
libel under either § 1983 or § 1331); Warth v. Seldin, 422 U.S. 490 (1975).
Heavy new burdens of proof on the issue of intent have placed significant risks
on this sort of litigation. See notes 5-6 supra.
82. 209 U.S. at 176. See Robb v. Connolly, 111 U.S. 624, 6537 (1884); P.
BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER, HART & WECHSLER'S THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 359-60 (2d ed. 1973) [hereinafter
cited as HART & WECHSLER]; H. FRIENDLY, supra note 39, at 90, citing U.S.
CONST. art. VI and THE FEDERALSIT No. 82; Traynor, Mapp v. Ohio at Large in
the Fifty States, 1962 DUKE L.J. 319, 327-28.
83. E.g., Massachusetts State Grange v. Benton, 272 U.S. 525, 527
(1926); Southern Pac. Co. v. Jensen, 244 U.S. 205, 223 (1917) (Holmes, J.,
dissenting).
Black85 continued to point out that the states can and must administer their affairs in conformity with the Constitution and ought to be allowed to do so. And that position again has begun to seem as much a principle of national policy as does the stand taken in section 1983, Ex parte Young and Brown II.86 Both positions are, of course, correct. This is the central paradox of our judicial federalism. The continued coexistence of these opposing national policies creates the ambivalence that from one generation to the next seems to open and then to close the doors of federal courts to those complaining of state wrongs. The task has always been to find an accommodation.
And so today a major area of controversy in the Burger Court's current retrenchment is the field occupied by federal courts under the Civil Rights Act, Ex parte Young and Brown II: their power to stay state proceedings, and, more broadly, their power to govern local agencies and officials by injunction. It is in the former area that the new "principles of federalism" were first applied in the post-Warren Court era, and in the latter that Rizzo v. Goode now make those "principles of federalism" applicable.
II. ORIGINS AND SIGNIFICANCE OF THE NEW DEFENSE: Younger v. Harris
The case of Younger v. Harris87 is almost universally understood to have worked a revolution in the availability of federal injunctions against state proceedings. Since that case was decided, the Supreme Court has devoted considerable energy to working out its implications.88 But neither
84. E.g., Snowden v. Hughes, 321 U.S. 1, 15-17 (1944) (Frankfurter, J.,
concurring).
85. E.g., Younger v. Harris, 401 U.S. 37 (1971); Atlantic Coast Line R.R.
v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281 (1970).
86. E.g., Younger v. Harris, 401 U.S. 37, 44 (1971) ("The National
Government will fare best if the States and their institutions are left free to
perform their separate functions in their separate ways.").
87. 401 U.S. 37 (1971). There were five companion cases: Samuels v.
Mackell, 401 U.S. 66 (1971) (declatory judgment barred on Younger facts);
Boyle v. Landry, 401 U.S. 77 (1971) (injunction barred where threat of
prosecution too remote); Perez v. Lesesma, 401 U.S. 82 (1972) (no injunction to
suppress evidence in state prosecution, reaffirming Stefanelli v. Minard, 342 U.S.
117 (1951)); Dyson v. Stein, 401 U.S. 200 (1971) (per curiam); Byrne v.
Karalexis, 401 U.S. 216 (1971) (per curiam).
88. The most significant rulings are Doran v. Salem Inn, Inc., 422 U.S.
922 (1975) (Younger showing is not required when no state proceedings are
pending, either for declaratory or injunctive relief); Hicks v. Miranda, 422 U.S.
the Court nor the commentators seem to have explained why Younger and its progeny have affected particular changes in preexisting law.89
In Younger, the federal plaintiff had been indicted for the crime of unlawful advocacy under a California criminal syndicalism statute.90 A similar statute was subsequently held unconstitutional by the Supreme Court in another case.91 He sought a federal injunction to stop the California prosecution, relying on the first amendment. The Supreme Court held such relief unavailable in federal courts.
No one should have been surprised at the result. It is true that the celebrated case of Dombrowski v. Pfister92 had authorized an injunction in a first amendment case, but in Dombrowski no prosecution was in fact
332 (1975) (state proceeding is "pending" whenever filed, as long as no
proceedings of substance on the merits have taken place in federal court);
Huffman v. Pursue, Ltd., 240 U.S. 592 (1975) (Younger applies to enforcement
proceedings civil in form). See also Steffel v. Thompson, 415 U.S. 452 (1974).
89. Before Younger, 28 U.S.C. § 2283 (1970) was an absolute bar to
federal interference with pending state judicial proceedings, civil or criminal,
except for three codified exceptions. Atlantic Coast Line R.R. v. Brotherhood of
Locomotive Eng'rs., 398 U.S. 281 (1970). After Younger, "Our Federalism" is
the bar to federal interference in pending state proceedings, but there is a
common law exception for proceedings brought in bad faith or other
extraordinary circumstances.
Before Younger, doctrines of equitable restraint had been developed that
virtually barred federal interference with nonpending but threatened state
proceedings. Douglas v. City of Jeannette, 319 U.S. 157 (1943). There was a
common law exception, however, for proceedings threatened in bad faith or other
extraordinary circumstances. Dombrowski v. Pfister, 380 U.S. 479 (1965). After
Younger, bad faith does not have to be shown in such cases; injunctive relief is
available if equitable jurisdiction is shown. Doran v. Salem Inn, Inc., 422 U.S.
922 (1975).
In addition, after Younger, declaratory relief is treated in the same way as
injunctive relief, despite Congress' intention to provide a miler alternative in
U.S.C. § 2201. Compare Cameron v. Johnson, 390 U.S. 611 (1968) with Steffel
v. Thompson, 415 U.S. 452 (1974).
90. CAL. PENAL CODE §§ 11400-11401 (West 1970).
91. Brandenburg v. Ohio, 395 U.S. 444 (1969), overruled Whitney v.
California, 274 U.S. 337 (1927), which had upheld California's criminal
syndicalism statute. The district court in Younger stayed Harris' state prosecution
before Brandenburg was decided. 281 F. Supp. 507 (C.D.Cal. 1968).
92. 380 U.S. 479 (1965).
pending.93 Harris' prosecution, on the other hand, was certainly pending and seemed obviously barred by the Anti-Injunction Act,94 unless his suit fell under one of the statutory exceptions,95 or unless Dombrowski's first amendment rationale could be extended to authorize relief even when state proceedings were pending.
Harris argued that the case came within the codified exception for injunctions "expressly authorized" by Congress, because it was brought under section 1983,96 which grants jurisdiction "in equity." But the Court found it unnecessary to reach that point. Returning to language of earlier cases, including Ex parte Young,97 the court treated the Anti-Injunction Act as emblematic of an underlying principle that would limit federal injunctions against state proceedings even in the absence of the Act. Justice Black, writing for the majority,98 labeled that underlying principle
93. 380 U.S. at 484 n. 2.
94. 28 U.S.C. § 2283 (1970). The statute reads: "A court of the United
States may not grant an injunction to stay proceedings in a State court except as
expressly authorized by Act of Congress, or where necessary in aid of its
jurisdiction, or to protect or effectuate its judgments."
See Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs., 398
U.S. 281, 294-95 (1970) (§ 2283 an absolute bar to federal interference with state
proceedings, civil or criminal, no common law exceptions; statutory exceptions
construed narrowly).
95. 28 U.S.C. § 2283 (1970). See note 94 supra.
96. Civil Rights Act of 1871, § 1, 42 U.S.C. § 1983 (1970). The section,
as amended, reads: "Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges or immunities secured by the
Constitution and laws, shall be liable to the person injured in an action at law,
suit in equity, or other proper proceeding for redress."
The parallel jurisdictional provision reads: "The district courts shall have
original jurisdiction of any civil action authorized by law to be commenced by
any person:. . . (3) To redress the deprivation, under color of any state law,
statute, ordinance, regulation, custom or usage, of any right, privilege or
immunity secured by the Constitution of the United States or by any Act of
Congress providing for equal rights of citizens or of all persons within the
jurisdiction of the United States," 28 U.S.C. § 1343(3) 1970).
97. 209 U.S. at 166-68.
98. Only Justice Douglas dissented.
"Our Federalism."99 It was "Our Federalism," not the Anti-Injunction Act, that closed the federal doors to Harris.
But what, precisely, was "Our Federalism"? Now that the dust has settled on the cases applying it, the doctrine can be restated very briefly: Generally, federal trial courts may not interfere in state enforcement proceedings unless there is a showing of extraordinary circumstances, usually amounting to bad faith on the part of the state authorities or other inadequacy of the state forum. "Bad faith," in the context of a state prosecution, is defined as a lack of reasonable expectation that the prosecution will succeed.100
Failure to make the Younger showing of bad faith or other inadequacy of the state forum means dismissal.101 No exception is made for prosecutions under statutes facially invalid on first amendment grounds; that was decided in Younger.102 No exception is made for section 1983 civil rights cases103 or for cases of racial discrimination.104 No
99. 401 U.S. at 44.
100. Kugler v. Helfant, 421 U.S. 117, 126 n. 6 (1975); Perez v. Ledesma,
401 U.S. 82, 85 (1971). Although the Supreme Court since Younger has not
sustained an injunction on "bad faith" gournds, it has decided a number of cases
in which the state forum was challenged as inadequate on other grounds. See
Juidice v. Vail, 97 S.Ct. 1211 (1977) (contempt proceedings challenged on due
process grounds; injunction disapproved); Kugler v. Helfant, 421 U.S. 117 (1975)
(proceedings against judge in his own county by officials allegedly planning to
remove him before judges sharing their view; injunction disapproved because
state appellate remedies would be adequate); Gerstein v. Pugh, 420 U.S. 103
(1975) (legality of pretrial detention could not be raised in prosecution;
injunction approved); Gibson v. Berryhill, 411 U.S. 564 (1973) (administrative
proceeding by state board of optometrists inadequate because all members were
professional rivals of the federal plaintiff, injunction approved).
101. Gibson v. Berryhill, 411 U.S. 564, 577 (1973).
102. 401 U.S. at 51.
103. Virtually all of these cases are, or can be, brought under § 1983. See
text accompanying notes 115-21 infra.
104. Race was not treated as a distinguishing factor in later cases
extending Younger. E.g., Rizzo v. Goode, 423 U.S. 362 (1976); O'Shea v.
Littleton, 414 U.S. 488 (1974). See A.L.I., Study of the Division of Jurisdiction
Between State and Federal Courts 297 (1969).
exception apparently is made when the enforcement proceedings are civil in form.105
But why has the Supreme Court in Younger and its progeny labored so strenuously to accomplish only this substitution of "Our Federalism" for the Anti-Injunction Act? The participation of most of the liberal wing of the Court106 may perhaps be explained, if we allow ourselves to presume that there were clear understandings at the time, by first, the fact that after Younger federal injunctions were to be held permissible where state proceedings were threatened but not yet pending107 — a substantial change in prior law;108 second, the belief that after Younger a federal injunction could issue against a pending state civil proceeding109 — another
105. Juidice v. Vail, 97 S.Ct. 1211 (1977); Huffman v. Pursue, Ltd., 420
U.S. 592 (1975).
106. Although Justice Brennan, the author of Dombrowski, filed a
concurring opinion joined by Justices White and Marshall, he did not explain
why he was in agreement with the Court on the first amendment issue. 401 U.S.
at 56. Justice Stewart also concurred, joined by Justice Harlan. Id. at 54. Justice
Douglas alone dissented, arguing that § 1983 was an exception to § 2283
"expressly authorized" by Congress. Id. at 68.
107. Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) (Younger showing not
required if state proceeding is not pending); accord, Village of Belle Terre v.
Boraas, 416 U.S. 1, 3 n. 1 (1974); Steffel v. Thompson, 415 U.S. 452 (1974)
(declaratory judgments). On the meaning of "pending," see Hicks v. Miranda,
422 U.S. 332 (1975) (state proceeding pending even if filed after federal
injunction action, providing no substantial proceedings on the merits have taken
place in federal court); Huffman v. Pursue, Ltd., 420 U.S. 492 (1975) (federal
plaintiff required to exhaust state appellate remedies; injunction barred although
state judgment has become final).
108. Under the doctrine of equitable restraint of Douglas v. City of
Jeannette, 319 U.S. 157 (1943), a federal injunction generally could not issue to
stay threatened state judicial proceedings.
109. For some of Justice Brennan's understandings, see his dissents in
Huffman v. Persue, Ltd., 420 U.S. 592, 613 (1975) and Juidice v. Vail, 97 S.Ct.
1211, 1220 (1977). See notes 115-21 infra and accompanying text for some
implications of this position. From a doctrinal point of view, it is not possible
to distinguish civil from criminal proceedings persuasively. The concerns of
federalism that support federal noninterference in criminal cases are also relevant
in civil cases, and Justice Brennan's argument based on § 1983 would support
federal interference with criminal cases, his concurrence in Younger
notwithstanding, as well as in civil cases. Arguably the need for intervention is
stronger in criminal cases than in civil, as the federal criminal plaintiff who is
turned away may be subjected to grave risks, expense and stigma.
potentially substantial change;110 and third, the fact that "Our Federalism" would ameliorate the previously inflexible ban of the statute by importing into "pending" cases a common law exception for bad faith or other inadequacy of the state forum.111 But these differences do not explain the participation of the conservative majority in building the new structure.112
A. The Precipitating Problem
But the Younger Court was concerned not so much with the general problem of controlling federal interference with state proceedings, as with the particular issue the Younger Court had avoided reaching: the irreconcilability of the Anti-Injunction Act with the Civil Rights Act of 1871. This problem had been a source of increasing embarrassment to the Court ever since 1961, when Monroe v. Pape113 ushered in a renaissance of jurisdiction under section 1983. The precise question was whether section 1983, by which the Reconstruction Congress gave federal trial courts jurisdiction "in equity" to remedy state deprivations of civil rights, fell within the statutory exception to the Anti-Injunction Act for federal injunctions "expressly authorized" by Congress.
The statutory text and legislative history114 made it difficult to argue that section 1983 did not expressly authorize injunctive relief. On the other hand, the Supreme Court could not afford to take the view that section 1983 was a congressionally authorized exception to the Act.
110. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs., 398
U.S. 281 (1970) holding that § 2283 absolutely bars injunctions against pending
state proceedings, was a civil case. Like Huffman v. Pursue, Ltd., 420 U.S. 592
(1975), it involved only a request for collateral review, rather than an order
staying pending proceedings. The distinction is discussed in Wooley v. Maynard,
97 S.Ct. 1428, 1433 (1977).
111. Compare Atlantic Coast Line R.R. v. Brotherhood of Locomotive
Eng'rs., 398 U.S. 281 (1970) (permitting no common law exceptions to § 2283)
with Gerstein v. Pugh, 420 U.S. 103 (1975) (injunction may issue where federal
question could not be raised in state proceedings) and Gibson v. Berryhill, 411
U.S. 564 (1973) (injunction may issue where state administrative tribunal
incompetent to adjudicate).
112. Not does the assimilation of declaratory judgments to injunctions
after Younger explain that participation. Steffel v. Thompson, 415 U.S. 452
(1974); Samuels v. Mackell, 401 U.S. 66 (1971).
113. 365 U.S. 167 (1961).
114. See note 96 supra. For legislative history see Mitchum v. Foster, 407
U.S. 225, 238-42 (1972); Monroe v. Pape, 365 U.S. 167, 173-87 (1961).
Consider the Act's core application to state criminal prosecutions. If section 1983 was an exception, any state defendant with a colorable constitutional defense could seek a federal injunction. If federal injunctions were to issue freely to block pending state criminal prosecutions, nearly two centuries of case law establishing the limits of federal judicial power would be overturned.
Moreover, the exception could annihilate the rule.115 Any state judicial proceeding may be couched as a section 1983 deprivation on the theory that what a state court does is state action.116 Wholly private cases conceivably could be scooped out of the state courts and into the federal judicial system. That certainly could happen if the federal plaintiff alleged a state judicial denial of procedural due process.117 It also could happen if judicial enforcement of state tort118 or contract119 law was thought to infringe substantive first amendment and other civil rights. But it could also happen, potentially, if judicial enforcement of state law was alleged to deny the federal plaintiff substantive due process in the sense in which the railroad argued in Ex parte Young that the state ratemaking was so arbitrary and confiscatory as to deny it due process of law.120 The result could be total federal control over state adjudications, public and private, destroying any significant independent role for the state tribunals in our federal system.121
115. Any state action might be couched as a § 1983 deprivation, as, for
example, when the state sues in a proprietary or contractual capacity. Thus, a
dispute of essentially no federal concern could be shifted from state to federal
jurisdiction.
116. See, e.g., Lynch v. Household Fin. Corp., 405 U.S. 538 (1972); New
York Timess Co. v. Sullivan, 376 U.S. 254 (1964); AFL v. Swing, 312 U.S. 321
(1941).
117. E.g., Lynch v. Household Fin. Corp., 405 U.S. 538 (1972). Compare
Gibson v. Berryhill, 411 U.S. 564 (1973) with Juidice v. Vail, 97 S.Ct. 1211
(1977).
118. New York Times Co. v. Sullivan, 376 U.S. 254 (1064) (libel).
119. Shelley v. Kraemer, 334 U.S. 1 (1948) (racially restrictive covenant).
120. The reductio ad absurdum would be a federal plaintiff's allegation
that application of the state's strict liability rules to the case would constitute a
"taking." But see note 121 infra.
121. Suppose, for example, a state-court action by a used car dealer
against D. The dealer repossesses the car. The state court now proposes to try
title to the property. D goes to federal district court seeking a § 1983 injunction,
arguing that the state court is taking his property confiscatorily. In Lynch v.
Household Fin. Corp., 405 U.S. 538 (1972), the federal plaintiff argued that the
These difficulties may explain why in 1970 the Court in Atlantic Coast Line Railroad v. Brotherhood of Locomotive Engineers122 insisted that the Anti-Injunction Act was an absolute bar to interference in all pending state cases,123 and why it continued to reserve the section 1983 issue in case after case,124 including Younger v. Harris, despite the mounting pressure of section 1983 litigation, until it deemed itself prepared for the confrontation. The confrontation occurred in Mitchum v. Foster.125
B. Mitchum v. Foster: "Resolution" of the Confrontation
Between Section 1983 and the Anti-Injunction Act
In Mitchum, Florida had instituted a civil proceeding to shut down Mitchum's bookstore as a public nuisance. Mitchum sued for a federal injunction under section 1983, arguing that the state proceeding violated his first amendment rights. He thus raised again the dangerous question whether section 1983 expressly authorized the injunction within the meaning of the Anti-Injunction Act.
In an eloquent opinion the Court affirmed that the Reconstruction legislation did indeed modify the earlier law in this way.
state forum was procedurally defective; D, however, is going further and arguing
a violation of substantive due process rights. See Ex parte Young, 209 U.S. 123
(1908); Chicago B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897). As in Lynch,
however, D's defendant is not an attorney gneral but a used car dealer. Should
the injunction issue? In a similar but "procedural due process" case, Juidice v.
Vail, 97 S.Ct. 1211 (1977), the Supreme Court appears to reject such a
possibility. Although important rights are always raised in framing a § 1983
case, these cases seem to be civil rights cases only in a fictional sense. Yet it
would be impossible to say in advance that all cases in this category cannot be
make "federal" cases; the exigencies of pleading alone may generate the federal
questions, buts the questions may be of great moment nonetheless.
In creating "Our Federalism," the Supreme Court seems to have viewed
such questions as beyond the reach of the removal statute, 28 U.S.C. § 1441(b)
(1970).
122. 398 U.S. 281 (1970).
123. That case was not a § 1983 case, although it could have been pleaded
as one, relying on a first amendment right instead of a federal common law right
to picket.
124. See, e.g., Lynch v. Household Fin. Corp., 405 U.S. 538, 556 (1972);
Younger v. Harris, 401 U.S. 37, 54, (1971); Cameron v. Johnson, 390 U.S. 611,
613 n.3 (1968); Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2 (1965).
125. 407 U.S. 235 (1972).
Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.
. . . .
Section 1983 was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late 18th century when the anti-injunction statute was enacted. The very purpose of §1983 was to interpose the federal courts between the States and the people. . .126
But it would have been inappropriate to view Mitchum as a significant breakthrough even in 1972, for the Court had already decided the case that made section 1983 a safe nonissue: Younger v. Harris. Under Younger, issues under the Anti-Injunction Act and its exceptions are simply not reached.127 It is worth noting that injunctive relief was not authorized in Mitchum; the case was remanded so that the trial judge could consider the applicability of Younger.128 Mitchum was reversed not
126. Id. at 242.
127. Assuming the case can be pleaded as a § 1983 case, and it is difficult
to imagine a case that cannot. § 2283 is simply inapplicable, as Mitchum holds.
But suppose that the Younger showing of bad faith is made out. Can the
injunction issue without regard to § 2283? That is the uniform result when the
state forum is held inadequate. See, e.g., Gerstein v. Pugh, 420 U.S. 102 (1975);
Gibson v. Berryhill, 481 U.S. 564 (1973).
If When the Younger showing of bad faith cannot be made out, the
question arises: What happens to the former exceptions to § 2283 codified by
Congress? Suppose a § 1983 action for a declaratory judgment. The declaratory
judgment is entered. The federal defendant next files a state prosecution and, in
good faith, begins relitigating the issues tried in the federal case. As a result, the
federal plaintiff returns to federal court and files a § 1983 action based on the full
faith and credit clause, seeking an injunction to protect the federal court's prior
judgment. Under the rationale of Younger, the injunction ought not to issue.
There is no bad faith, and the state court is fully adequate to process the plea of
res judicata. Yet, Congress expressly codified this relitigation exception in 1948,
28 U.S.C. § 2283 (1970) (injunction allowable "to protect or effectuate [a federal
court's] judgments"), to overcome the effect of Toucey v. New York Life Ins.
Co., 314 U.S. 118 (1941). Perhaps that will be thought sufficient to override
Younger, but if § 1983, another express Congressional authorization, cannot
because the complaint had been dismissed erroneously but because it had been dismissed on the wrong ground.
And so the real explanation for "Our Federalism" surfaces: It obliterates section 1983 as a threat to established patterns of judicial federalism; the Court decided Younger as it did because Mitchum was waiting in the wings. After Younger the Court could decide Mitchum without fear of opening any new jurisdictional doors other than those it was prepared to open.129
C. The New Accommodation
The Court, in fact, was prepared to open some doors, in this sense Younger truly was "an accommodation" of the "competing values: of federal civil rights enforcement on the one hand and the dual court system on the other.130 In the unanimous decision in Doran v. Salem Inn, Inc.,131 the Court opened the door wide to federal injunctions against state proceedings that are threatened seriously but not yet pending. Under this heading both Douglas v. City of Jeannette132 and Dombrowski v. Pfister133 are no longer in point; no Younger showing need be made in order to avoid dismissal, and federal constitutional rights will be enforced fully by federal injunctions, even by staying state prosecutions.134
In addition to this, the Younger defense has been kept limited to state enforcement proceedings or proceedings akin to them, and has not been
override "Our Federalism," it is hard to see that the much less compelling
"relitigation exception" would be permitted to do so. But see Steffel v.
Thompson, 415 U.S. 452 (1974) (White, J., concurring). Thus, § 2283 seems to
be judicially expunged (at least in cases pleadable under § 1983) whenever
Younger applies, and Toucey resurrected. See Lamb Enterprises, Inc. v. Kiroff, -
--- F.2d ---- (6th Cir. 1977). There should be no distinction between an ancillary
and an original bill, and the Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356
(1921), which allowed an injunction to prevent relitigation ancillary to class suit,
like § 2283, would be disregarded on the point.
128. 407 U.S. at 244.
129. See text accompanying notes 107-11 supra.
130. See Hicks v. Miranda, 422 U.S. 332, 357 (1975) (Stewart, J.,
dissenting).
131. 422 U.S. 922 (1975).
132. 319 U.S. 157 (1943). See note 108 supra.
133. 308 U.S. 479 (1965). See note 89 supra.
134. E.g., Wooley v. Maynard, 97 S.Ct. 1428 (1977); Gerstein v. Pugh,
420 U.S. 103 (1975).
applied freely in wholly private civil cases.135 Some members of the Court have expressed the view that Younger clearly should be inapplicable to pending civil proceedings; they rightly argue that if the door to such relief is not open then, Mitchum v. Foster was a "Pyrrhic victory."136 Although the result they contemplate would give greater scope to the concerns underlying section 1983, I doubt that it will emerge. The concerns underlying "Our Federalism" seem almost as strongly implicated when a state court has taken jurisdiction over a civil as over a criminal case.e Moreover, the concerns underlying section 1983 seem stronger when it is a criminal prosecution the federal plaintiff is seeking to halt.137 Finally, a wholly private state civil litigation, in the nature of things, often will not be worth "making a federal case" of.138 If accommodation along some bright line is what is wanted, federal injunctions should be barred in pending civil as well as criminal state proceedings, just as they are freely available where civil or criminal state proceedings are merely threatened. On the other hand, one might argue that injunctions against only threatened criminal proceedings and pending civil ones should be permitted. But whatever the ultimate accommodation, it can be agreed that real compromise is necessary; the Court was right in perceiving that section 1983 and the dual court system were on a collision course.
Finally, Younger requires scrutiny of adequacy of the state forum, a ground of exception apparently unavailable under the Anti-Injunction Act.139 Thus, if the prosecution is brought in bad faith or the state forum is
135. Juidice v. Vail, 97 S.Ct. 1211, 1218 n. 13 (1977), is the closest the
Court has come to barring an injunction against a private civil litigant on
federalism grounds. There, the federal plaintiff was a defaulting debtor who had
disregarded a deposition subpoena. It was held error to enjoin the contempt
proceedings but the underlying dispute was between private debtor and creditor.
In other cases of pending civil proceedings, the state has been an enforcing party
plaintiff. E.g., Huffman v. Pursue. Ltd., 420 U.S. 592 (1975).
A number of courts of appeals have extended Younger to civil proceedings.
See Lamb Enterprises, Inc. v. Kiroff, ---- F.2d ---- (6th Cir. 1977); Duke v. Texas,
477 F.2d 244 (5th Cir. 1973); Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973);
Cousins v. Wigoda, 463 F.2d 603 (7th Cir. 1972). 136. Juidice v. Vail, 97 S.Ct.
1211, 1221 (1977) (Brennan, J., joined by Marshall, J., dissenting), quoting The
Supreme Court, 1971 Term, 86 HARV. L. REV. 50, 217-18 (1972); Marshall, JJ.,
dissenting), quoting The Supreme Court, 1971 Term, supra at 217-18.
137. See note 109 supra.
138. See notes 120-21 supra.
139. See note 94 supra.
for some other reason inadequate for trial of the federal issue, an injunction is permitted.140
D. Troubling Implications of the New Defense
But the new defense of "Our Federalism" is troubling. First, it is not administered within the discretion of the trial court. It is a door-closing rule, shutting the door mechanically in every case in which it is thought to apply, unless the Younger showing of bad faith prosecution or other inadequacy of the state forum is made out. The several elements of "bad faith,"141 "pending"142 and "proceeding"143 have been given some definitional content in later cases, but there is little room for judicial analysis and the informed discretion of the chancellor in applying these rules.
Second, the underpinning of the doctrine — the presumed adequacy of the state forum — seems fundamentally at odds with section 1983. Although the Court has taken the trouble to give actual scrutiny when the adequacy of the state forum is challenged,144 only in Mitchum did it
140. See note 111 supra.
141. Kugler v. Helfiant, 421 U.S. 117 (1975) (allegations of pervasive
bias against judge on the part of state authorities trying his case; injunction
denied on assumption that state appellate remedies would be adequate); Perez v.
Ledesma, 401 U.S. 82 (1971) (bad faith defined as prosecutor's expectation that
prosecution will not succeed); Allee v. Medrano, 416 U.S. 802 (1974) (bad faith
is quasijurisdictional showing in "proceedings" cases; in cases seeking relief from
state executive action bad faith is part of prima facie case; in police misconduct
cases bad faith must be shown by pervasive pattern or practice to distinguish
governmental action from collection of isolated trespasses).
142. Hicks v. Miranda, 422 U.S. 332 (1975) (state proceeding is pending
even if filed after the federal injunction action, as long as no proceedings of
substance on the merits have taken place in federal court); Huffman v. Pursue,
Ltd., 420 U.S. 592 (1975) (state proceeding is pending after judgment becomes
final; federal plaintiff must exhaust state appellate remedies). In Wooley v.
Maynard, 97 S.Ct. 1428 (1977), the Court distinguished cases seeking
prospective interference from those, like Huffman, seeking collateral review. A
federal plaintiff need not appeal from a state judgment when seeking relief solely
with respect to threatened future proceedings.
143. Juidice v. Vail, 97 S.Ct. 1211 (1977) (contempt; creditors' remedy);
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (enforcement proceeding civil in
form); Gibson v. Berryhill, 411 U.S. 564 (1973) (administrative proceeding).
144. Juidice v. Vail, 97 S.Ct. 1211 (1977) (due process challenge, relief
denied); Kugler v. Helfant, 421 U.S. 117 (1975) (bias, relief denied); Gerstein v.
recognize that section 1983 creates the reverse presumption, at least with respect to those whom the statute was especially intended to protect. Thus, despite Mitchum, Younger continues, as did the Anti-Injunction Act, to bar a stay of a state prosecution against a member of a racial minority with a constitutional defense.
Third, in slaying the dragon lurking in section 1983, the Court has used more force than necessary. Of course, fictitious civil rights claims ought not to invoke the federal injunctive power,145 and the difficulty of sorting out fictitious from genuine claims146 in section 1983 cases may seem to warrant some broad prophylactic rule. But what of the clear case of racial discrimination in contemplation of which section 1983 was enacted? After Younger, "Our Federalism" as crudely as section 2283 blocks an injunction to stay a state prosecution under racially repressive legislation, despite the perception in Mitchum v. Foster that Congress intended such an injunction to be available. After Younger, the state tribunals are presumed adequate to process the equal protection issue, and the notion that prosecution under a facially unconstitutional law would amount to "bad faith" or at least "extraordinary circumstances" justifying injunctive relief was sledgehammered into oblivion in Younger itself.147
Thus, in substituting "Our Federalism" for the Anti-Injunction Act, the Supreme Court has discarded an opportunity to bring reasoned analysis into a federal trial judge's decision whether or not to intervene in an allegedly unconstitutional state proceeding and, in the narrow views taken of forum adequacy and bad faith, has waived an opportunity to provide full protection for those whom the Civil rights Act was especially intended to protect. In making these choices, the Supreme Court has infused "Our Federalism" with the disturbing message that the mighty post bellum shift in power to federal trial courts relied on in Mitchum is in reality, in the context of federal injunctions against pending state proceedings, quietly to be finessed. The message is that, since they take jurisdiction, we must trust the state courts, and pace the Civil War.
III. EXTENSION TO OTHER CIVIL RIGHTS CASES: Rizzo v. Goode The even greater significance of Younger v. Harris is that "Our Federalism" has begun to furnish a broad principle applicable not only in actions for federal injunctions against state judicial proceedings but across
Pugh, 420 U.S. 103 (1975) (issue not raisable, relief granted); Gibson v.
Berryhill, 411 U.S. 564 (1973) (bias, relief granted).
145. See text accompanying notes 115-21 supra; note 121 supra.
146. See note 121 supra.
147. 401 U.S. at 51-54.
the board in federal civil rights litigation.148 At least, that appears to be the view taken by the Supreme Court in Rizzo v. Goode.149
A. Rizzo v. Goode: "Our Federalism" in a New Context
Rizzo was a class action on behalf of the citizens of Philadelphia against the mayor and the commissioner of police. The plaintiffs alleged that in prearrest procedures the Philadelphia police persistently violated the civil rights of minority citizens and that despite repeated complaints the defendant supervising officials had failed to take adequate remedial steps. The plaintiffs sought broad injunctive relief, including the appointment of a receiver to run the Philadelphia police department.150
The trial judge found numerous occurrences of the sort of violation alleged.151 Although he did not find that the named defendants intended to violate the plaintiffs' constitutional rights, he found that the defendants had failed to take adequate remedial steps.152 Nonetheless, he declined to give the sweeping relief prayed for. Instead, retaining supervisory jurisdiction, he ordered the defendants to submit a plan for improving the handling of citizen complaints and revising police training programs and manuals under guidelines composed by him.
148. This has been the result in habeas corpus. But see Francis v.
Henderson, 426 U.S. 536, 551 (1976) (Brennan, J., dissenting) ("The increasingly
talismanic use of the phrase 'comity and federalism'--itself devoid of content
other than in the Younger sense...has the look of an excuse being fashioned by the
Court for stripping federal courts of the jurisdiction property conferred by
Congress.").
The Court previously has considered extending some analog of Younger to
injunction cases. See Carter v. Jury Comm'n., 396 U.S. 320 (1970) (Black, J.,
concurring); Mayor v. Educational Equality League, 415 U.S. 605, 615-16
(1974). Both cases were decided on the issue of intent.
In the 1976 Term, the Supreme Court has reserved for the first time the
question whether the new defense is applicable in civil rights actions for
damages. Juidice v. Vail, 97 S.Ct. 1211, 1219 n. 16 (1977). On this issue see
Justice Brennan's dissent. Id. at 1219, 1222 n. 16.
149. 423 U.S. 362 (1976).
150. Council of Orgs. on Phila. Police Accountability and Responsibility
v. Rizzo, 357 F.Supp. 1289 (E.D. Pa. 1973). Of the two cases consolidated for
decision, only Goode sought establishment of effective grievance procedures.
151. Id. at 1292-317.
152. Id. at 1319.
A unanimous panel affirmed in the third Circuit Court of Appeals,153 and on certiorari in the Supreme Court briefs amici urging affirmance were filed by the Commonwealth of Pennsylvania and by the Philadelphia Bar Association, among others.154 Surprisingly, in view of this unanimity of support for the trial judge's decree, the Supreme Court reversed. Justice Rehnquist, writing for the majority of five,155 reasoned that the plaintiffs had failed in three respects to lay a basis for injunctive intervention.
First, the case fell short of an actual case or controversy. The named plaintiffs had alleged only that they were subject to a speculative threat of future injury at the hands of a small number of police officers not joined as defendants. The case should have been dismissed on motion under O'Shea v. Littleton;156 O'Shea had held that when the named representatives of a class lacked standing, they could not maintain the action either in their own right or on behalf of those they purported to represent.157 But Justice Rehnquist felt that he could not rest the decision on this ground because the case, unlike O'Shea, was not before the Court on the pleadings; in his view, the case-or-controversy issue was no longer open because an uncontested class certification had been made, and the trial judge thus had "bridged the gap between the facts shown at trial and the class-wide relief sought with an unprecedented theory of 1983 liability."158
153. Goode v. Rizzo, 506 F.2d 542 (3d Cir. 1974).
154. 423 U.S. at 384 (Blackmun, J., dissenting).
155. Justice Blackmun filed a dissent in which Justices Brennan and
Marshall joined; Justice Stevens took no part in consideration or decision of the
case.
156. 414 U.S. 488 (1974).
157. O'Shea thus substantially undercuts Fed. R.Civ.P. 23(b)(2), the
purpose of which was to provide a remedy for threatened harms to a class.
Whenever the threat is serious enough to affect whole populations, as in police
misconduct cases. O'Shea's individual standing requirement makes the
threatened violation virtually irremediable in equity. Curiously, the case has
been the subject of little commentary.
158. 423 U.S. at 373. But these facts do not actually explain why the case
could not be rested on the O'Shea case-or-controversy ground. It is true that in
Sosna v. Iowa, 419 U.S. 393 (1976), a class action that had become moot as to
the original plaintiff was held not moot with respect to the class. But nothing in
Sosna overrules O'Shea. Nor, for that matter, could the proof at trial affect the
case-or-controversy issue, which is adjudicated on the assumption that the
allegations of the complaint are true. And the trial judge's theory of liability, that
the defendants had failed to run the police properly, could add nothing to
Second, the burden of proof of discriminatory intent had not been carried. The plaintiff failed to show a pervasive pattern of discriminatory conduct on the part of the subordinate officers that would support an inference of intentional discrimination on the part of the defendants.159 Justice Rehnquist felt it inappropriate to subject these city officials to affirmative duties under court order upon a showing of a small number of isolated trespasses on the part of their subordinates.160 He distinguished the case in this respect from school discriminatory cases relied on by the plaintiffs, because in those cases discriminatory intent had to be shown. The Court seemed to hold that merely negligent failure of city officials to supervise their departments could not lay a basis for injunctive relief under section 1983. The case thus importantly joins other late civil rights cases imposing heavy new burdens of proof of discriminatory intent.161
Justice Rehnquist gave no reason why this failure to show the requisite quantum of intent did not ground the decision. But perhaps the Court decided not to rest the case on either of these first two rationales for the simple reason that certiorari had been granted to deal with a third
whatever inferences of future harm might be found in the allegations of the
complaint.
159. 423 U.S. at 375. This wing of the opinion seems unpersuasive
because it amounts to a disagreement between the five members of the majority
and the trial judge on the conclusions to be drawn from the lengthy factual
record. There seems to have been an adequate basis in fact for the conclusion the
trial judge did draw, as the dissenting Justices pointed out. Id. at 383.
160. Here, the partial dissent of Chief Justice Burger in Allee v. Medrano,
416 U.S. 802, 844 (1974) (Burger, C.J., concurring in part and dissenting in part),
seems to have become law, along with the views expressed by Justice Frankfurter
in his dissent in Monroe v. Pape, 365 U.S. 167, 215 (1961), and his opinion in
Snowden v. Hughes, 321 U.S. 1, 15-17 (1944).
161. See note 6 supra. See notes 243-49 infra and accompanying text for
further discussion of the impact of the intent requirements on § 1983. The intent
requirement imposed in Rizzo does not seem as consistent with prior
jurisprudence as Justice Rehnquist implied. The Civil Rights Act of 1871 was
intended to remedy omissions and neglect in high places in injunctive as well as
damage suite. See Mitchum v. Foster, 407 U.S. 225, 240-41 (1972). Moreover,
the statute is read "against the background of tort law which makes a man
responsible for the consequences of his acts." Monroe v. Pape, 365 U.S. 167,
187 (1961). Finally, although Keyes v. School Dist. No. 1, 413 U.S. 189, 198
(1973), articulated an intent requirement for school desegregation cases, it
allowed a showing of disproportionate impact upon racial minorities to shift the
burden of explanation to the defendants. Id. at 208-09. Yet, the recent injunction
cases on intent, including Rizzo, seem to hold that disproportionate impact,
without more, cannot establish a prima facie case. See note 6 supra.
issue:162 the general desirability of federal intervention in state governmental affairs. And on that issue, the Court held that principles of federalism blocked federal injunctions not only against state proceedings but against state officials as well:
[T]he principles of federalism which play such an important part in governing the relationship between federal courts and state governments, though initially expounded and perhaps entitled to their greatest weight in cases where it was sought to enjoin a criminal prosecution in progress . . . likewise have applicability where injunctive relief is sought not against the judicial branch of the state government, but against those in charge of an executive branch of an agency of state or local governments....163
It is this last point, of particular interest to students of federal jurisdiction and public law, that is the stated ground of decision.164 It is a most novel proposition that, Ex parte Young, section 1983 and Brown II notwithstanding, a federal trial court cannot fashion a prospective remedy to discourage deprivations of constitutional rights because federalism requires that state officials failing to protect against such deprivations be left free from federal interference. Moreover, in striking down a rather ordinary injunction in a rather commonplace civil rights case as an injection by injunctive decree into the "internal disciplinary affairs" of a state agency165 and an unwarranted intrusion by the federal judiciary into the discretion of that agency,166 the Court in Rizzo took a startlingly restrictive view of the sweep of federal injunctive power.167
B. Attempting to Understand Rizzo
Rizzo's discussion of federalism would be troubling even if it were obiter dictum and represented only the inattention of the rest of the
162. 423 U.S. at 366 ("We granted certiorari to consider petitioners'
claims that the judgment of the District Court represents an unwarranted intrusion
by the federal judiciary into the discretionary authority committed to them by
state and local law to perform their official functions.").
163. Id.
164. Id.
165. Id. at 379.
166. Id. at 380.
167. See text accompanying notes 267-78 infra.
Court.168 The suggestion that there are "principles of federalism" that bar federal injunctions against state officials seems a broadside attack upon the equity clause of section 1983 and on Ex parte Young and Brown II.169
That apprehension is made more painful by the crudeness with which Rizzo proposes that the door be slammed. A denial of access to federal equity under Rizzo would be at least as automatic in "officials" cases as it has become in "proceedings" cases. In part, that danger arises from Rizzo's failure to discuss the applicability of the new defense and to indicate where its limits may be found. And it also arises from Rizzo's lack of realistic inquiry into the existence of factual bases for the application of such a defense. But, most importantly, it arises from Rizzo's failure to see the differences between "proceedings" and "officials" cases and to accommodate the national interest, as, in fact, that interest is ultimately accommodated under Younger.
Clues to the applicability of the new defense cannot be found in the language of the opinion. Younger's concern for the integrity of pending state criminal prosecutions does not define the reach of the case, because in Rizzo, there were no pending prosecutions.170 Nor can the case be limited to the criminal justice context: The Court's broad language gives
168. The dissent by Justice Blackmun in which Justice Brennan joined
was silent on the federalism issue. Dissenting in the habeas corpus case of
Francis v. Henderson, 426 U.S. 536 (1976), however, Justice Brennan took
occasion to criticize Rizzo. See note 148 supra.
169. Indeed, the Court might be suggesting not only that the litigant with a
constitutional defense is to be denied access to the federal courts under Younger,
but also that the litigant with a constitutional claim is to be denied access, as long
as the violation is by a state, rather than by the national, government; in the end,
even damage claims may be included. See note 148 supra.
170. This is one of the reasons why Justice Rehnquist's reliance on O'Shea
v. Littleton, 414 U.S. 488 (1974), seems unpersuasive. 423 U.S. at 378, 379. In
O'Shea, a class of minority plaintiffs alleged that state judicial officers
systematically set higher bail and imposed higher sentences upon minority
defendants, 414 U.S. at 491-92. The refusal on federalism grounds to authorize
injunctive relief was a reasonable extension of Younger, because enforcement of
an injunction regulating sentencing and bond setting could entail intervention in
every ongoing criminal case before those judicial officers. Similarly, in
Stefanelli v. Minard, 342 U.S. 117 (1961), also mentioned by Justice Rehnquist,
423 U.S. at 378, an injunction against the use of illegally seized evidence could
interrupt an ongoing prosecution for piecemeal trial of collateral issues. But in
Rizzo there was no interference with state judicial process.
no comfort to that view171 and Justice Rehnquist relies not only on one case civil in form172 but on another in which the criminal context arguably is wholly absent.173 The injunctions struck down in Rizzo did not impinge on the state criminal process; rather, the decree sought to restructure administrative grievance machinery and personnel programs outside the criminal justice process. At any rate, now that a federal injunction can issue to stop a criminal prosecution provided only that it is seriously threatened but not yet pending,174 it would be anomalous if some tangential criminal context were the key to Rizzo. Finally, the Court recently has rejected the view that "Our Federalism" is entirely a product of concern for the integrity of state criminal justice; it now perceives that the new defense protects the national interest in dual federalism and the dual court system.175
The simplest way to read the case, and one that persuasively may distinguish it from other civil rights cases, is to read it as a policy misconduct case. It now seems to be the view of the majority that neither isolated176 nor systematic177 police misconduct can be an appropriate
171. The absence of qualifying modifiers is notable throughout the
federalism wing of the opinion. E.g., 423 U.S. at 378 ("Where, as here, the
exercise of authority by state officials is attacked, federal courts must be
constantly mindful of the 'special delicacy of the adjustment to be preserved
between federal equitable power and State administration of its own law.'"); id. at
380 ("[W]e think these principles . . . have applicability where injunctive relief is
sought, not against the judicial branch of the state government, but against those
in charge of an executive branch of an agency of state or local governments such
as respondents here."); id. ("When it injected itself by injunctive decree into the
internal disciplinary affairs of this state agency, the District Court departed from
these precepts.").
172. Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).
173. Mayor v. Educational Equality League, 415 U.S. 605 (1974).
174. See cases cited in notes 107 & 134 supra.
175. "[W]e think the salient fact is that federal court interference with the
States' contempt process is 'an offense to the State's interest. . .likely to be every
bit as great as it would be were this a criminal proceeding'.... Moreover, such
interference with the contempt process not only 'unduly interferes with the
legitimate activities of the State' . . . but also 'can readily be interpreted "as
reflecting negatively upon the State court's ability to enforce constitutional
principles."'" Juidice v. Vail, 97 S.Ct. 1211, 1217-18 (1977).
The perception that state criminal processes are indistinguishable from
state civil processes, if the concern is the integrity of the dual court system, is
correct, but it means that Mitchum is "an empty shell." Id. at 1222 (Brennan, J.,
dissenting). See the discussion of this point in note 109 supra.
subject for federal judicial supervision.178 If this is all that the case rep- resents, however, it is odd that it is painted with so broad a brush.179 Moreover, the decree struck down in Rizzo did not purport to regulate police misconduct. Thus, little in the opinion would stand in the way of a broad application to bar federal injunctions against any state official or instrumentality,180 and in fact the Court is applying the doctrine more broadly, although not yet in actions under section 1983.181
Nor is it clear, as it is even under Younger, what sort of showing would avoid dismissal. Rizzo alludes casually to the fact that "extraordinary circumstances" might justify an exception to the rule.182 But we are not told what these circumstances might be. The Younger showing of bad faith harassment could not be what is meant, because
176. "In sum, the genesis of this lawsuit--a heated dispute between
individual citizens and certain policemen--have evolved into an attempt by the
federal judiciary to resolve a 'controversy' between the entire citizenry of
Philadelphia and the petitioning elected and appointed officials . . . "Rizzo v.
Goode, 423 U.S. 362, 371 (1976).
In Allee v. Medrano, 416 U.S. 802 (1974), Chief Justice Burger expressed
the view that ultimately prevailed in Rizzo: "Willful, random acts of brutality by
police, although abhorrent in themselves, will not form a basis for a finding of
bad faith." Id. at 838. "Nor can the isolated instances of police misconduct . . .
found by the District Court turn a series of prosecutions. Apparently instituted in
good faith . . . . into a campaign of terror. . . . Id. at 844.
177. Rizzo, of course, is such a case. See Juidice v. Vail, 97 S.Ct. 1211,
1220, 1223 (1977) (Brennan, J., dissenting); note 157 supra.
178. "The problems created by this injunction against police misconduct
are manifold. In the enforcement of the injunction, the district court will likely
place itself on a collision course with our holdings in Younger and O'Shea. . . .
Federal district courts were not meant to be super-police chiefs, disciplining
individual law enforcement officers for infractions. . . ." Allee v. Medrano, 416
U.S. 802, 857-58 (1974) (Burger, C.J., concurring in part and dissenting in part),
"reaching down through the State's criminal justice system to deal directly with
the abuses at the primary enforcement level," id. at 838.
179. See note 171 supra.
180. Those arguing to lower courts that the case is limited to police
misconduct facts can quote only the following as suggesting that limitation: "The
lower courts have, we think, overlooked several significant decisions of this
Court in validating this type of litigation and the relief ultimately granted." 423
U.S. at 371 (emphasis added).
181. See note 148 supra.
182. 423 U.S. at 379 (citing O'Shea).
Rizzo holds that there must be proof of discriminatory intent in any event.183 Thus, in failing to establish elements of and limits upon its "principles of federalism," the Rizzo Court fails to give the new defense even the minimal analytic content "Our Federalism" has under Younger v. Harris.
Furthermore, the Rizzo Court makes no attempt to say what it was in the trial judge's decree that offended equity, comity or federalism.184 If, as the Court notes, there is a "'special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law,'"185 the question whether that delicacy of adjustment was, in fact, preserved or upset by the decree ought to have been explored; curiously, there is no attempt at that sort of analysis.186 Justice Rehnquist noted that the decree restricted the latitude of a state agency in the dispatch of its own internal affairs.187 But the agency activity the decree restructured related
183. Id. Chief Justice Burger treats the two showings as identical in Allee
v. Medrano, 416 U.S. 802, 854 (1973) (Burger, C.J., concurring in part and
dissenting in part): "A finding of police harassment necessary for the issuance of
an injunction against police misconduct is not quasi-jurisdictional as with
Younger, but is a determination on the merits."
184. The Court used general, repetitive phrases. For example, the Court
stated that the trial judge's decree was a departure from "principles" and
"considerations" having to do with "'delicate issues of federal-state relationships.
. . .'" 423 U.S. at 380, quoting Mayor v. Educational Equality League, 415 U.S.
605, 615 (1974). In addition, the Rizzo Court complained that the decree
disregarded "principles of federalism which play such an important part in
governing the relationship between federal courts and state governments. . . ."
423 U.S. at 380. The Court's language is slightly more specific in describing the
decree as "undoubtedly" restricting the latitude of a state agency in the dispatch
of its own affairs, id. at 379, an attack on the "exercise of authority" by state
officials, id. at 378, and an injection "by injunctive decree into the internal
disciplinary affairs of this state agency," id. at 380.
185. 423 U.S. at 378.
186. See text accompanying notes 191-209 infra.
187. 423 U.S. at 379. The references to internal affairs here, and to
internal disciplinary affairs, id. at 380, seem uncompelling. A decree regulating
the establishment of grievance machinery to be furnished to the public regulates
not the internal affairs of the defendant but those of its affairs that are related to
the needs of the public. Moreover, the implication of this language that the
creation of an administrative remedy for one aggrieved by police misconduct is
beyond federal equitable power is unfortunate. See text accompanying note 308
infra. Finally, the Chief Justice in his dissent in Bivens v. Six Unknown Named
Agents, 403 U.S. 388, 422 (1972), suggested that an administrative remedy
importantly to the plaintiff class, and the minimal intrusion contemplated would seem to be the inescapable corollary of Ex parte Young, section 1983, and Brown II.
Thus, the "federalism" wing of the Rizzo opinion reads as though it were intended to gut the equity clause of section 1983. Justice Rehnquist did deal very briefly with the irreducible fact that in the Civil Rights Act Congress expressly authorized injunctive relief in actions against state officials. Like Justice Stewart in Mitchum v. Foster,188 Justice Rehnquist was able to solve that problem by a reference to Younger v. Harris.189 While candidly conceding that under Mitchum section 1983 was an exception to the Anti-Injunction Act, he was able to point out that today "'principles of equity, comity and federalism'" nevertheless block injunctions that the Act would have blocked but for section 1983.190
C. The Concerns of Federalism and the Policies Underlying the Civil Rights Act: Distinguishing Younger
Rizzo's "principles of federalism" turn the grand institutions of our judicial federalism upside down. They set up a presumption against federal relief that is utterly at odds with the Civil Rights Act and Ex parte Young. The Court casually asserts that, except in "extraordinary circumstances," a federal court will not grant an injunction against a state official!191 What has been lost sight of is the national interest in federal enforcement.192
I. The propriety of dismissals in cases raising issues of
federalism.
The Younger provenance of the Rizzo defense should not be allowed
to create an illusion that docket-clearing dismissals would be appropriate
in certain civil rights cases. In a case in the Younger mold, when a court is
would be a superior solution; in view of that opinion in Bivens, the Chief Justice
ought to have explained his concurrence on this point in Rizzo. The fact that the
state agency itself would administer the remedy set up by the decree rather than
some federal quasi-administrative tribunal established by Congress, as the Chief
Justice suggested in Bivens, could hardly have made the difference in an opinion
relying on principles of federalism.
188. 407 U.S. 225, 243 (1972).
189. Younger was not mentioned by name, but the reference is
unmistakable, 423 U.S. at 180.
190. Id. at 479, quoting Mitchum v. Foster, 402 U.S. 225 , 243 (1972).
191. 423 U.S. at 379 (citing O'Shea).
192. See text accompanying notes 213-17 infra.
asked for a stay order it either grants or denies the application. But in an
action complaining of other official conduct, a court can shape the relief as
artfully or crudely as the occasion requires, and dismissals are always
inappropriate when the grounds for them could be accommodated by
limiting the scope of the decree. In invoking the venerable desiderata of
equity, comity and federalism, the Supreme Court fails to persuade us that
these are the ingredients of some monolithic defense along the lines of
"Our Federalism." The case would remain unconvincing even had the
Court purported to leave these "factors" of equity, comity, and federalism
to the trial judges to "weigh" in deciding in their discretion whether or not
to issue civil rights injunctions. It would be difficult to understand under
either view why problems of federalism could not, with hard work and
imagination, be accommodated as they arise in the shaping of relief. It
would be difficult to understand why the trial judge's attempt to do just
that was struck down in Rizzo.
Of course, there must be limiting cases in which the problems of
federalism seem so acute that even on a showing of intentional violation
no effective injunction can issue. O'Shea v. Littleton was probably such a
case,193 and it appeared when decided that Milliken v. Bradley194 was
another. But to impose the Procrustean final solution of mandatory
Younger dismissals, not only in extreme cases but in cases in which the
decree could accommodate concerns of federalism, is to miss the point of
Younger v. Harris and to lose sight of the national interest manifested in
the Civil Rights Act.
Younger and its progeny represent an accommodation of
fundamentally opposing national interests along a bright line.195 When a
state court has not yet taken jurisdiction, the national interest in federal
enforcement of the Civil Rights Act is allowed full play, and federal
injunctions issue even in criminal cases.196 But under Younger once the
state has taken jurisdiction of a case the national interest in dual federalism
predominates, and federal injunctions interfering with state courts are
barred — certainly in criminal prosecutions, probably in civil suits.197
That all-or-nothing ac- commodation reached in Younger is a virtual
necessity because in the paradigm case a injunction is simply a stay
193. See note 170 supra.
194. 418 U.S. 717 (1974).
195. See text accompanying notes 130-40 supra; note 142 supra.
196. Wooley v. Maynard, 97 S.Ct. 1428 (1977); Doran v. Salem Inn, 422
U.S. 922 (1975).
197. See note 105 supra.
order; the decree has no scope, so that there is no room for
accommodation within it. But as Younger itself suggests, some
accommodation is necessary.
The Rizzo Court immolates the national interest in federal
enforcement in order to exalt the opposing national interest in dual
federalism. It does this while shutting its eyes to the trial judge's decree
that did accommodate both interests. It is the Court's blind refusal to leave
room for any accommodation, to separate the question of availability from
the question of scope, that gives Rizzo its aura of unreality.
2. The propriety of allocating jurisdiction to state rather
than federal courts.
The Court should have seen two crucial differences between "proceedings" and "officials"
cases. Under Younger, by hypothesis some forum is available in the state courts, and the
lynchpin of "Our Federalism" is the presumed adequacy of the state court to try the federal
plaintiff's constitutional defenses. But in "officials" cases, by hypothesis there is no particular
forum, only some vague possibility of state remedies — which in Rizzo the Court does not bother
to canvass. Even if the Court correctly viewed Rizzo as a collection of miscellaneous common
law trespasses,198 the question remains whether the local courts could have taken jurisdiction of
this claim against high city officials without other options. In any event, state trespass remedies
were recently canvassed by Justice Harlan and found inadequate,199 and were considered in
Monroe v. Pape and held irrelevant.200 The Supreme Court in Rizzo did not consider whether it
may be remitting the plaintiffs to state remedies that do not exist. It did not inquire whether
there is some local analog to Rule 23(b)(2) by which the courts of Pennsylvania could give relief
for threatened harms to a class. It did not state whether the judges in Pennsylvania ride circuit,
or are assigned to cases or only to sessions; yet, if judges do not sit in one county and retain
supervisory jurisdiction of a case throughout its history, rational administration of complex civil
rights cases is not a realistic possibility. It was proved at trial on the merits that in Rizzo there
was an utter absence of any effective administrative remedy. That fact underscores the unreality
of a result that upset the trial judge's attempt to set up just such an administrative remedy.201
Finally, there is the importance, especially in race cases, of providing the option of a federal
forum even for those whose doubts about their chances of fair trial in the state courts are
speculative and would not furnish the basis of an additional constitutional defense. Even if the
Supreme Court could guard the civil rights of all litigants on certiorari,202 this right of option
would be defeated by Rizzo.
Rizzo was the sort of case that is probably most appropriate for the taking of federal
jurisdiction. The public action on behalf of a class resting on allegations of racial injustice, like
the antitrust case, the consolidated multiple patent infringement action, the railroad bankruptcy
suit — and unlike the automotive collision case in diversity, or the prosecution of a petty mail
thief — is the paradigm federal case; it calls for the presumptively even-handed and effective
federal injunctive power. In the absence of federal relief, the trial judge in Rizzo could conclude
from the record that the abuses proved would continue, with attendant frustration of national
policy in race and police misconduct matters.
198. 423 U.S. at 371, quoted in note 176 supra; id. at 375 (showing of isolated instances
insufficient to prove pervasive pattern from which intentional state action can be inferred).
199. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 409 (1971) (Harlan, J., concurring).
200. 365 U.S. 167 (1961). It should be noted, on the other hand, that the states generally must take
jurisdiction of a § 1983 cause of action. See, e.g., Sullivan v. Little Hunting Park, 396 U.S. 229 (1969).
See also Testa v. Katt, 330 U.S. 386 (1974); General Oil Co. v. Crain, 209 U.S. 211 (1908).
201. On the potential inconsistency of Chief Justice Burger's concurrence in Rizzo and his
suggestion in dissent in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 422 (1971), that Congress
should establish an administrative remedy for police misconduct, see note 187 supra.
202. England v. Louisiana State Bd. of Med. examiners, 375 U.S. 411, 416 (1964) (possibility of
certiorari insufficient to protect federal rights).
3. Accommodating problems of federalism.
The Court also should have seen that the problems of federalism in "officials" cases are
different from those in "proceedings" cases. It cannot be said that the rule of federal trial judges
by decree since Brown II has been a politically palatable one or even a wholly successful one.203
But their real struggle lies not in the taking of jurisdiction or even in the job of trial and decision
but in the task of formulation and administration of remedies. In this sense, "officials" cases
present problems and opportunities wholly absent from "proceedings" cases.
It is easy to fall into the error of thinking that in framing a civil rights decree a federal
judge weighs national against local interests and winds up subordinating states' rights. Although
a chancellor will weigh the equities, under the supremacy clause, any local policy, however
strongly established, would have to fall before a conflicting national interest. Instead, in
formulating and administering a decree, a federal trial judge must take into account interests
shared by the whole nation.
It is national as well as state policy that the task of delivering vital local government
services like peacekeeping and education be delegated to local officials, and that the federal trial
judiciary, when possible, be allowed to get on with its other jobs. It is national as well as state
policy that the smooth delivery of these vital services not be impeded by awkward restrictions on
the discretion of local officials. It is national as well as state policy that local budgets not be
embarrassed by impossible demands vastly exceeding conceivable resources. It is national as
well as state policy that democratically elected officials be allowed to govern without usurpation
of their tasks by judges with life tenure who are thus accountable to no one. It is national as well
as state policy to encourage local solutions even to widespread problems. And it is national as
well as state policy that the dignity and autonomy of the states be preserved. These are the
national interests in federalism that federal trial judges must struggle to accommodate in decrees
manifesting the equally urgent national interest in federal enforcement of civil rights. In Rizzo, once the trial judge's narrow decree was available for scrutiny, it could not be said that any of these interests were offended. The interest in delegation of vital governmental tasks to local officials, for example, was not an issue. No vital governmental service, such a police peacekeeping, was regulated by the decree. Thus, the Chief Justice's powerful argument in Allee v. Medrano,204 that federal judges cannot sit as super-police chiefs "reaching down through the State's criminal justice system to deal directly with the abuses at the primary law enforcement level," has little relevance in Rizzo. Even if the decree had purported to regulate the exercises of police discretion, the defendants there were the supervising officials themselves, not the officers on the street. The decree only ordered them to perform their preexisting statutory and contractual duties of supervision.
For similar reasons, the national interest in smooth delivery of vital peacekeeping services was not involved in the case because the decree did not restrict the exercise of police discretion in performance of peacekeeping duties. Justice Rehnquist apparently took the view that it was enough that the decree restricted the latitude of a state agency in the conduct of its internal affairs. Yet the police department had already agreed in a prior case to the substance of the decree.205 In any event the language about "internal affairs" seems inapposite. It cannot be said
203. See text accompanying notes 280-92 infra.
204. 416 U.S. 802, 838, 858 (1974) (Burger, D.M., dissenting in part).
205. See Goode v. Rizzo, 506 F.2d 542, 547 (3d Cir. 1974) (discussing the consent decree in
Alexander v. Rizzo, No. 70-992 (E.D. Pa. 1972)).
that grievance procedures furnished to the public are affairs of internal agency management. It is also hard to say that grievance procedures furnished to the public are necessarily among those activities committed to agency discretion and hence unreviewable; no special policy concern would seem to support this view, while section 1983 was enacted to remedy the very situation in which local officials would fail to take remedial steps.206 The changes in police training that the decree might achieve could not seriously impair the discretion of law enforcement officers on the street, unless ignorance of the Bill of Rights is a precondition for effective police work.
Nor were the national interests in judicial noninterference with local representative government and taxing functions serious issues. The grievance machinery and new police manual proposed would be of minimal incremental expense to Philadelphia, and the trial judge was ordering only the performance of tasks the named defendants were elected to perform.
Finally, it is baffling that the Court could have believed the Rizzo decree a threat to the dignity, autonomy or sovereignty of the state, when the commonwealth of Pennsylvania itself was before the Court as amicus curiae urging affirmance.207 Had the relief originally sought been granted, and a receiver appointed to run the Philadelphia police department, the decree might have offended this and other concerns of federalism. But after the trial judge's actual decree was available for scrutiny, the reversal seems without rational basis.
In sum, it appears that in Rizzo the Court attempted to thrust the Younger result on an "officials" case without taking into account the accommodation on which Younger is based. In an "officials" case that accommodation usually can be made, as it was in Rizzo, in framing the decree. Of course there will be cases, like O'Shea, in which the impossibility of framing a workable decree produces a dismissal at the outset. But there also will be cases, like Baker v. Carr208 and Brown v. Board of Education,209 in which even the gravest problems of federalism cannot be allowed to take from the federal trial judges the struggle to find solutions.
Rizzo, then, bears all the indicia of a Younger v. Harris in the field of federal injunctions
against state officials, without the saving grace of the accommodation ultimately reached under
Younger. It falls short of Younger's grandeur only because it seems as yet too tentative; it lacks
the definitive, legislative note the Court struck in Younger. Because Rizzo fails to accommodate
the national interest manifested in Ex parte Young and the Civil Rights Act, if that note is ever
struck it will sound a dangerous and unjustified retreat. Ironically, the trumpet may blow in a
field already vacated by decamping armies. As the next Part will show, Ex parte Young already
has suffered grave reverses.
IV. ASSESSING THE IMPACT OF THE NEW DEFENSE: OTHER DEFENSES TO CIVIL
RIGHTS INJUNCTION ACTIONS
Rizzo's new "principles of federalism," of course, can make a difference only to the extent
that other defenses have not already eroded Ex parte Young. It becomes useful, then, to examine
the current range of effective defenses in civil rights injunction cases.
206. See Monroe v. Pape, 365 U.S. 167, 175-76 (1965).
207. 423 U.S. at 384 (Backmun, J., dissenting).
208. 369 U.S. 186 (1962); see note 53 supra.
209. 347 U.S. 483 (1954).
Before the era of the Warren Court, general controls upon federal jurisdiction over state unconstitutionality were imposed by narrow interpretation of the 14th amendment and the Civil Rights Act.210 Congress had enacted legislation intended to soften211 or block212 certain federal trial-court challenges to the dignity and autonomy of the states. But as the federal courthouse door swung open to civil rights claimants in the Warren Court era, a consensus seemed to emerge: Ex parte Young was perceived to be essential to the rule of law in our country.213 It was understood that suitors threatened by unlawful state action ought not to be remitted for protection to state courts unfit, if not to pass dispassionately upon complaints of state governmental lawlessness, then to give the appearance of doing so. And while damages214 and declaratory judgments215 have their uses in civil rights litigation, the need for a coercive remedy was apparent.216 In the Civil Rights Act and Ex parte Young, it was perceived that both Congress and the Court had recognized this need.217 Today federal equity seems central to the institutions of federalism; it administers a supremacy more dear to us than our dualism because it is more necessary to the preservation and regulation of the Union.
Given that consensus, one would expect to find even in the present Court few overt assaults on this vital heading of federal jurisdiction. In the Burger Court, a significant degree of control over federal injunctions against state officials has been obtained through imposition of
210. See note 39 supra.
211. The Three-Judge Court Acts, 28 U.S.C. §§ 2281-2284 (1970), have been repealed except in
apportionment cases and cases requiring a three-judge court under other acts of Congress. Three-Judge
Court Amendments, 90 Stat. 1119 (1976).
212. The Anti-Injunction Act, 28 U.S.C. § 2283 (1970); see note 94 supra. Statutes protecting
state official acts other than the prosecution of enforcement proceedings include the Johnson Act of 1934,
28 U.S.C. § 1342 (1970), forbidding federal injunctions against state administrative ratemaking agencies
under certain conditions, and the Tax Injunction Act of 1937, 28 U.S.C. § 1341 (1970), forbidding federal
injunctions against the assessment or collection of state taxes under certain conditions.
213. See e.g., C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 208-11 (3d ed. 1976).
214. E.g., Monroe v. Pape, 365 U.S. 167 (1961). But damages awards leave the state free to
violate the Constitution first and pay later.
215. E.g., Steffel v. Thompson, 415 U.S. 452 (1974). A declaratory remedy, however,
presupposes willing assent. It has not always been possible to make this assumption in § 1983 litigation.
216. See note 33 supra. Consider also the problems of enforcement inhering in Supreme Court
original jurisdiction of cases in which a state is a party. See HART & WECHSLER, supra note 82, at 268-69.
The effectiveness of federal coercive relief for threatened harms to a class was significantly enhanced in
1966 with the promulgation of FED. R. CIV. P. 23(b)(2). But see O'Shea v. Littleton, 414 U.S. 488 (1974);
notes 156-57 supra and accompanying text.
217. E.g., Zwickler v. Koota, 389 U.S. 241 (1967). A more subtle blow but one with potentially
broad impact fell upon the equity jurisdiction of federal trial courts in all public interest cases with the
decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975) (federal courts lack
discretion to award attorneys' feed against losing defendants absent a showing of bad faith). In civil
rights cases, however, Alyeska's impact is muted. Organizations like the American Civil Liberties Union
and the NAACP fund much of this litigation, there are several statutory fee authorizations predating
Alyeska, and Congress since Alyeska has provided others. See note 70 supra.
new burdens of proof of intent.218 This development apart, only traditional doctrines of justiciability219 and abstention220 have been available to curb the exercise of federal power. The new "principles of federalism" have no antecedents in this context.
A. The Extension of Comprehensive Immunities Defenses to
Injunction Actions
But recently a fairly coherent system for limiting the power of federal courts over state officials has emerged in actions for damages under Monroe v. Pape.221 I refer to the several doctrines of immunity. For the present inquiry, the important question is the extent to which these doctrines have been imported into injunction suits.
First, there is the defense of sovereign immunity under the 11th amendment. Ex parte Young holds only that a state official may be personally liable; the state itself remains immune from federal suit without its consent. Thus, when damages are to come not from the pocket of the defendant official but from the state treasury, the action cannot be maintained.222 In 1974, the Supreme Court applied the defense in a section 1983 injunction case, in which a federal decree would have required a retroactive distribution from state coffers.223 An extension of the case to cover orders of future disbursements or orders that would entail future expenditures clearly
218. See notes 5 & 6, supra.
219. Doctrines of justiciability, if applied in a principled way, can debar from federal adjudicating
only cases that are inappropriate for such adjudication; they cannot be stretched to restrict access in cases
like Younger in which there is clear standing, ripeness and controversy. It is true that the Supreme Court
may take a very restrictive view on what standing, ripeness and controversy embody. O'Shea is a prime
example; the justiciability requirement of that case makes most police misconduct cases nonjusticiable in
equity. Yet, such cases arguably represent a misreading of Article III and an overstatement of prudential
problems inhering in such adjudication. sosna v. Iowa, 419 U.S. 393, 402 (1975), for example, is a clear
recognition by the Burger Court of the impropriety of a restrictive view of justiciability in public interest
cases. See also Singleton v. Wulff, 428 U.S. 106 (1976); Griswold v. Connecticut, 381 U.S. 479 (1965).
As modern commentators have perceived, public actions involve the interests of whole classes of citizens
and their governments, not merely the interests of the named plaintiff and a subordinate state officer, and
in this context a restrictive view of justiciability is therefore inappropriate. See M. CAPPELLETTI, JUDICIAL
REVIEW IN THE CONTEMPORARY WORLD 69, 84 (1971); Jaffe, The Citizen as Litigant in Public Actions:
The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968).
220. The abstention doctrine is a clumsy tool for clearing federal dockets because it requires
formal retention of federal jurisdiction. See cases cited in note 10 supra.
There also has been much recent discussion proposing a return to strict requirements of exhaustion
of state remedies. See Runyon v. McCrary, 427 U.S. 160, 160 n.2 (1976) (Powell,J., concurring). This
trend has already been accomplished in cases under Younger in which postjudgment collateral review of
state court adjudications is sought. E.g., Huffman v. Pursue, Ltd., 420 U.S. 592 (1975). But broader
application would seem singularly inappropriate in civil rights cases in view of the balance struck by
Congress in § 1983. H. FRIENDLY, supra note 39, at 100-03 (1973) (exhaustion requirement desirable for
administrative but not judicial remedies). See Monroe v. Pape, 365 U.S. 167, 183 (1961).
221. 365 U.S. 167 (1961).
222. E.g., Ford Motor Co. v. Department of Treas., 332 U.S. 549 (1945).
223. Edelman v. Jordan, 415 U.S. 651 (1974). But see Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
would undermine existing understandings of the scope of federal equity as it is currently exercised under Brown II.224
Second, there is the defense of municipal immunity. That originated in Monroe v. Pape itself, holding that a municipal corporation was not a "person" within the meaning of section 1983.225 And in 1973 this statutory interpretation was quite logically carried over to actions in equity.226
Third, there are the absolute official immunities. Legislators227 and judges228 had been given such immunities before the advent of the Burger Court, and prosecutors were added to the roster in 1976).229 These officials cannot be held liable in section 1983 damages for conduct within the scope of their offices, however corrupt or malicious their motives, or great the damage or the affront to the Constitution.230 The Supreme Court has not approved such a defense in an injunction suit.231 To do so, of course, would be to overrule Ex Parte Young pro tanto. But of course Younger v. Harris will produce dismissals in actions against prosecutors or judges for
224. See Graham v. Richardson, 403 U.S. 365 (1971) (welfare officials prohibited from denying
benefits); Griffin v. School Bd., 337 U.S. 218 (1964) (state officials ordered to levy taxes and raise
funds), distinguished in Edelman v. Jordan, 415 U.S. 651, 667 n.12 (county is not state for 11th
amendment purposes). This problem is raised in the Detroit school desegregation case presently before
the Supreme Court. Milliken v. Bradley, 97 S.Ct. 380 (1976).
225. 365 U.S. 167, 187 (1961).
226. City of Kenosha v. Bruno, 412 U.S. 507 (1973); Moor v. Alameda County, 411 U.S. 693
(1973) (county immune despite lack of immunity under state law); see Mr. Healthy City School Dist. v.
Doyle, 97 S.Ct. 568 (1977) (civil rights action under Constitution and 28 U.S.C. § 1331 (1970); immunity
issue not raised: Court assumed, without deciding, that defendant may be sued whether or not it could be
sued under § 1983). Cf. Aldinger v. Howard, 427 U.S. 1 (1976) (municipal immunity cannot be
circumvented by pleading pendent state claim joining otherwise immune defendant). Lower courts have
extended the immunity to school boards in § 1983 cases. See 123 CONG. REC. S95, 206 (Jan. 10, 1977)
(remarks of Sen. Mathias) ("If the Kenosha ruling--which now has been held to . . . apply . . . school
boards--had been in force 20 years ago, 'I don't know if we ever would have gotten school desegregation.'
says chief Judge John R. Brown of the U.S. Court of Appeals in New Orleans.").
227. Tenney v. Brandhove, 341 U.S. 367 (1951).
228. Pierson v. Ray, 386 U.S. 547 (1967).
229. Imbler v. Pachtman, 424 U.S. 409 (1976).
230. In a compelling case, however, lower courts probably will define narrowly the "scope of
office." E.g., Sparkman v. McFarlin, 45 U.S.L.W. 2462 (7th Cir., Mar. 23, 1977) (no immunity for judge
who on the application of the mother ordered sterilization of a minor without affording notice or
appointing guardian ad litem).
231. The Court was fairly invited to do so in O'Shea v. Littleton, 414 U.S. 488 (1974). There, the
plaintiff class sought a federal injunction to insure nondiscriminatory sentencing in state criminal cases.
The court of appeals rejected the district court's cri de coeur that the defendants were judicially immune.
The Supreme Court solved the problem by reserving the immunity question, id. at 488, and by forging a
justiciability rule for class actions. See note 157 supra. In Sosna v. Iowa, 419 U.S. 393, 398 n.5 (1975),
Justice Rehnquist indicated his belief that judicial immunity might be available in equity. In most cases
likely to raise the issue, it would seem that Younger would lead to dismissal in any event.
stay orders or for injunctions that otherwise would interfere with pending state litigation,232 and in this context Ex parte Young is overruled pro tanto.
Finally, there are the qualified immunities of good faith that the Supreme Court has bestowed upon a rapidly widening circle of state officials. Governors and other executive official may escape liability for a section 1983 violation by showing good faith,233 as may public hospital officials234 and school authorities.235 And the police have enjoyed a qualified defense of good faith and probable cause since Warren Court days.236 These defenses, of course, protect reasonable exercises of discretion.237 Their application produces a beneficial scrutiny of the circumstances of the particular case.238 But, like the absolute immunities, they have not been recognized in injunction suits. There would seem to be no need for them in such suits; officials in exercising their discretion may not be influenced by the possibility of an adverse ruling in an injunction suit; the imposition of monetary liability might seem to them a greater danger. It is true that after an injunction has issued a defendant official must exercise discretion so as to avoid contempt; but it generally has been left to the trial judge to frame a decree allowing latitude for the reasonable exercise of official discretion.239
This scheme of immunities in civil rights damage actions has made it difficult for the civil rights tort plaintiff to find a defendant able to pay damages — and the contingency fee of plaintiff's counsel. The state need not pay unless it consents; the municipality cannot rewrite section 1983 even by consent,240 and the ordinary schoolteacher or police officer, even if unable to show good faith, cannot pay much worth suing for. The officials higher up the ladder might be worth litigation costs but are often wholly immune from suit or at least privileged for their good faith torts. Thus, the section 1983 action for damages today has surprisingly low vitality. If the Monroe v. Pape floodgate is open, these days the flood is under control,241 whatever Congress intended by including the words "shall be liable"242 in the Civil Rights Act.
Although it approved the defenses of sovereign and municipal immunity for use in equity, the Supreme Court left untouched the central principle of Ex parte Young: the personal
232. E.g., O'Shea v. Littleton, 414 U.S. 488 (1974). Not can the prosecutor be liable for damages,
even for a bad faith decision to prosecute. Imbler v. Pachtman, 424 U.S. 232 (1976).
233. Scheuer v. Rhodes, 416 U.S. 232 (1974).
234. O'Connor v. Donaldson, 422 U.S. 563 (1975).
235. Wood v. Strickland, 420 U.S. 308 (1975).
236. Pierson v. Ray, 386 U.S. 547 (1967).
237. Id. at 557.
238. E.g., Scheuer v. Rhodes, 416 U.S. 232, 246 (1974).
239. See Allee v. Medrano, 416 U.S. 802, 811-14 (1974).
240. Moor v. County of Alameda, 411 U.S. 693 (1973).
241. The exception seems to be Monroe v. Pape actions against trespassing police officers. In
some communities governmental indemnification programs make the police attractive defendants, with
consequent impact on federal dockets. The 11th amendment implications of indemnification are unclear.
242. 42 U.S.C. § 1983 (1970). See note 96 supra. For discussion of the extent to which the
immunities defenses encroach upon Ex parte Young, see Scheuer v. Rhodes, 416 U.S. 232, 237-49
(1974); Sterling v. Constantin, 287 U.S. 378, 397-98 (1932).
responsibility of state officials for their unconstitutional acts. But that principle has in fact been undermined by a shifting of the qualified immunities into injunction suits.
In imposing strict burdens of proof of discriminatory intent in such civil rights injunction actions as Rizzo, Washington v. Davis,243 Arlington Heights,244 and the Austin school desegregation case,245 the Supreme Court obviously has set up the functional equivalent of a qualified defense of good faith for these cases. There is, of course, a difference in allocation of burden of proof on the issue of bad faith. But it is anomalous that the burden should be on the plaintiff in the injunction rather than the damages case, given the assumptions with which this discussion began about the importance of federal equity in civil rights litigation.
When state enforcement proceedings are pending, the Court similarly has transplanted the defense of good faith to equity cases. As we have seen, under Younger v. Harris a showing of "bad faith" is now required to avoid dismissal in such suits, unless some other inadequacy of the state forum can be shown.246 And here, too, the burden is placed on the plaintiff rather than the defendant to show the defendant's state of mind.
Thus, the qualified immunities of good faith have as a practical matter been shifted over to injunction suits. Ex parte Young, at law and in equity, now can protect only against demonstrably intentional violations: against the violations of legislators, only in equity;247 against those of prosecutors and judges, rarely even in equity.248 To cap all, threats of future harm to a class, as in police misconduct cases, to a great extent are removed from the protection of Ex parte Young by the justiciability doctrine of O'Shea v. Littleton.249
B. The Impact of Rizzo
Rizzo can make one difference — not material to the result but possibly significant to a Supreme Court anxious to clear federal dockets — in cases that would fail anyway for lack of sufficient showing of intent: It can produce dismissals at the pleading stage.250 Beyond this not-so-small point, Rizzo's new "principles of federalism" can add a meaningful weapon to the armamentarium only in the narrow class of cases in which intent problems do not arise or can be surmounted. Rizzo, in brief, is not of great moment unless it applies to block injunctions against demonstrably intentional violations; those injunctions appear to be all that is left of Ex parte Young.
243. 426 U.S. 229 (1976).
244. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 97 S.Ct. 555 (1977).
245. Austin Independent School Dist. v. United States, 97 S.Ct. 517 (1976).
246. See cases cited in note 100 supra.
247. Tenney v. Brandhove, 341 U.S. 367 (1951).
248. Younger v. Harris, 401 U.S. 37 (1971).
249. See notes 156-57 supra and accompanying text.
250. See texts accompanying notes 101 and 147 supra; text accompanying note 310 infra. There
also may be a possibility of extending Rizzo to damage actions in which the defendant lacks full
immunity. Lower courts seem to be taking this path. E.g., Martin v. Merola, 532 F.2d 191, 194-95 (2d
Cir. 1976) (principles of comity and federalism said to bar action against state prosecutor). Of course,
after Imbler v. Pachtman, 424 U.S. 409 (1976), the defendant prosecutor in Martin would have been
immune in any event.
Rizzo is an imperfect fool for toppling what little remains of the precious, but fragile, edifice of federal court enforcement of civil rights. Because the intentional torts in Rizzo were committed not by the defendants but by subordinate officers who were never joined in the action, it is hard to argue that Rizzo itself immunizes the intentional constitutional torts of state officials from federal injunctive interference. But recent developments, taken together with certain aspects of Rizzo, strongly suggest that that result is precisely what the Supreme Court contemplates.
Rizzo relies, for example, on O'Shea v. Littleton.251 In that case, the Court in dictum expressed the view that principles of federalism barred relief. A class of minority citizens were complaining of systematic discriminations by state judicial officers in criminal sentencing and in bailsetting. But if principles of federalism could bar relied in O'Shea, they can override proof of intentional discrimination: O'Shea arose on the pleadings, and thus the allegations of discriminatory intent had to be taken as true.252
Rizzo also refers prominently to Mayor v. Educational Equality League.253 There, the Court considered whether principles of federalism forbade federal injunctive interference with a mayor's discretionary appointment powers.254 If they did so apply, they could override a showing of discriminatory intent; for when certiorari was granted, the Court of Appeals had held that a violation had been proved.255 It was only because the Supreme Court reversed on the issue of intent that it did not reach the federalism issue.256 In Rizzo itself, as we have seen, the Court went ahead after a similar collapse of the case on the issue of intent, and decided the federalism issue anyway, treating it as a separate and overriding issue.257
251. 414 U.S. 488 (1974).
252. Id. at 492.
253. 415 U.S. 605 (1974). See also Carter v. Jury Comm'n., 396 U.S. 341 (1970) (Black, J.,
concurring).
254. 415 U.S. at 615.
255. 472 F.2d 612 (3d Cir. 1973).
256. 415 U.S. at 616.
257. Recall the "Our Federalism" in cases under Younger prevails over the holding in Mitchum
that Congress intended access, despite § 2283, to federal injunctions in civil rights cases. Huffman v.
Pursue, Ltd., 420 U.S. 592 (1975). It might be thought, however, that the "bad faith" exception simply
means that the injunction will issue upon a showing of discriminatory intent--exactly the pattern the Court
has been insisting on in civil rights cases generally. Yet it appears that "bad faith" in the Younger sense
means something more than an ordinary prima facie showing of intent. For example, a trier of fact might
rationally infer that prosecutor Younger intended to prosecute Harris under a facially unconstitutional,
politically repressive law, because he disagreed with his politics. Yet a "bad faith" exception was held in
that case to require a greater showing. The Dombrowski facts involving a pattern of harassment, perhapss
involving unwarranted seizures and repeated prosecutions, may be the requirement. See Allee v.
Medrano, 416 U.S. 802, 838 (1974) (Burger, C.J., concurring in part and dissenting in part). Thus, "Our
Federalism" seems to override even a prima facie showing of intentional violation of unconstitutional
rights.
By way of analogy, consider the Court's current thinking on "bad faith" for the purposes of
justifying a discretionary award of attorney's fees. The Alyeska case left untouched the bad faith
Indeed, it is an established proposition that plaintiffs prepared to prove intentional violations of constitutional rights can be denied federal relief. That is the result when damages are sought against legislators, prosecutors and judges258 The same result is reached in those injunction cases in which the scope of any effective remedy is held beyond federal equitable power.259
Thus, it is reasonable to expect that the new federalism defense Rizzo proposes will apply
even where discriminatory intent is established. And yet, as we have seen, to allow such a
defense would virtually blot Ex parte Young and much of the Civil Rights Act of 1871 from the
landscape of American jurisprudence. The new defense, then, is a bald assertion that we are to
trust state officials, as Younger v. Harris is an assertion that we are to trust state courts.
But just as the allocations of jurisdiction in the Union inevitably hinge on critical
considerations of federalism, so also, deep at the heart of our problems of federalism lies the
racial question, as it always has. After all, the old, ugly issue persists; it was involved in Rizzo.
It cannot be said in 1976, any more than it could be in 1954, or in 1871, that on the racial
question we do trust the states. Thus, this instance of federal door-closing, at best explainable as
a matter of institutional convenience, may be perceived as a way to accomplish procedurally a
counterrevolution in race relations impossible to launch substantively.
V. THE NEW JUDICIAL FEDERALISM AND THE SCHOOL DESEGREGATION CASES
This inquiry thus inevitably leads to the question whether Rizzo has potential for
application beyond police misconduct cases to civil rights cases generally. In singling out the
school desegregation cases as illustrative I have chosen the application that might be thought
least plausible. On the other hand, it can be agreed that these cases represent the most
controversial current exercises of federal injunctive power.
Should the Supreme Court decide to quicken the pace of its current retrenchment in school desegregation, it will not do so by reinterpreting the equal protection clause. It will do so by discovering the sort of procedural impediment with which it has limited access to federal jurisdiction for other public interest litigation.260 In this light, "principles of federalism" may have a real potential for application in school desegregation cases.
A. Changing Attitudes Toward Court-Ordered Desegregation
exception to the general rule that plaintiff must pay its own attorney's fees. In Runyon v. McCrary, 427
U.S. 160 (1976), the successful plaintiffs in a race discrimination case against private schools under §
1981 sought attorney's fees on the ground that the showing of intentional racial discrimination of
necessity amounted to "bad faith." But the Court distinguished "bad faith" in this context from the
discriminatory intent that must be proved to show a violation. "Simply because the facts were found
against the [defendants] does not by itself prove that threshold of irresponsible conduct for which a
penalty assessment would be justified." Id. at 183. If discriminatory intent on the part of a civil rights
defendant is not sufficient "bad faith" to justify an award of attorney's fees, arguably a proved intentional
violation would not constitute the "extraordinary circumstances" that might justify an exception to the
seemingly more compelling "principles of federalism."
258. See notes 227-29 supra and accompanying text.
259. See notes 193-94 supra and accompanying text.
260. See notes 9 & 10 supra.
Since Brown v. Board of Education, the Court has changed, the political environment has changed and the degree to which federal plaintiffs are sure of what they want has changed. Until quite recently, nothing could have seemed less probable than a Supreme Court retreat of federal judicial supervision of school desegregation in this country. As the federal courthouse doors began to close to other public interest cases, the Supreme Court, with the unanimity of the Warren Court days, still could hold in Swann v. Charlotte-Mecklenberg Board of Education261 that busing and assignment on the basis of race were permissible remedies.262 School boards were under an affirmative duty263 to eliminate dual school systems "root and branch",264 the test of a permissible desegregation plan was its effectiveness.265
Then the focus began to shift from the rural to the urban school district, and from southern segregation patterns set by discriminatory laws to northern segregation patterns set by seemingly private residential choices.
In the post-1966 explosion of public interest litigation,266 state government by federal decree became an increasingly characteristic feature of our polity. But the uniquely "governing" quality of federal equity267 since Brown II was nowhere so dynamically invoked as in the school desegregation cases that unleashed it.268 There, scarcely tempered by political, administrative and financial realities, scarcely deflected by small but painful vortices of popular resistance, fear and flight, the power wielded by federal trial judges in the task of desegregating our nation's schools astonished the country.
In this great task, federal trial judges have barred elected officials from performing their duties, have put schools in receivership,269 have ordered, with whatever provision for financing was in their power, that local authorities build or open schools,270 close others,271 hire teachers,
261. 402 U.S. 1 (1971).
262. Id. at 28, 29.
263. Brown v. Board of Educ., 349 U.S. 294, 299 (1955); Green v. County School Bd., 391 U.S.
430, 437, 439 (1968).
264. Green v. County School Bd., 391 U.S. 430, 437-38 (1968).
265. Id. at 439.
266. See text accompanying notes 64-71 supra.
267. See generally Weinberg, The New Meaning of Equity, 28 J. LEGAL ED. 532 (1977).
Interestingly, Judge Garrity is considering delegating the administration of Boston public schools to a
"department of implementation" to be appointed by the School Committee. N.Y. Times, May 7, 1977, at
8, col. 5.
268. Brown v. Board of Educ., 349 U.S. 294 (1955). E.g., Swann v. Charlotte-Mecklenburg Bd.
of Educ., 402 U.S. 1 (1971) (busing, assignment on basis of race, pairing, or even closing of schools);
Davis v. Board of School Comm'rs, 402 U.S. 33 (1971) (faculty and staff desegregation); United States v.
Scotland Neck City Bd. of Educ., 407 U.S. 484 (1972) (altering district lines). But see Austin
Independent School Dist. v. United States, 97 S.Ct. 517 (1976); Milliken v. Bradley, 418 U.S. 717 (1974).
269. E.g., Morgan v. McDonough, 540 F.2d 527 (1st Cir. 1976), cert. denied, 45 U.S.L.W. 3640
(Jan. 11, 1976).
270. Griffin v. County School Bd., 377 U.S. 218, 233 (1964).
271. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 20 (1971).
reassign teachers and principals,272 provide transportation, transport whole populations of schoolchildren daily,273 reassign teachers and pupils on the basis of race,274 redistrict gerrymandered districts275 and rearrange gerrymandered attendance zones, create gerrymandered attendance zones,276 change uses for existing schools, create special educational programs,277 levy taxes, and raise funds.278 The very closeness and constancy of federal judicial supervision and the very breadth of the decrees have provoked controversy among those who claim to take no negative stand on the substantive issues.279 Doubts about federal judicial supervision have begun to be expressed openly, not only by the avowed racists or regional spokesmen of 10 years ago, but by the highest national officials,280 social scientists281 and leaders of black as well as white opinion.282
The climate of hostility to federal school desegregation decrees in the North has not approached the intensity of reaction to Brown v. Board of Education in the South; residents of northern cities have not seen a state governor blocking the schoolhouse door283 or the United States Army called out to contain the disturbance.284 But many children travel to school under police escort and receive their education in buildings in which police presence is highly visible.
In this atmosphere, the problem of third person "harms" to schoolchildren in the form of "forced busing" has become an important national issue.285 In 1972, President Nixon's antibusing
272. See Davis v. Board of School Comm'rs, 402 U.S. 33, (1971); Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); United States v. Montgomery County Bd. of Educ., 395
U.S. 225, 232, 235 (1969); Green v. County School Bd., 391 U.S. 430, 435 (1968).
273. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).
274. Id. at 22.
275. United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484 (1972).
276. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 27 (1971).
277. E.g., Bradley v. Milliken, 540 F.2d 229 (5th Cir. 1976), cert. granted, 97 S.Ct. 380 (1976).
278. Griffin v. County School Bd., 377 U.S. 218, 233 (1964).
279. E.g., L. GRAGLIA, DISASTER BY DECREE: THE SUPREME COURT DECISION ON RACE AND THE
SCHOOLS (1976).
280. See text accompanying note 1 supra.
281. E.g., Glazer, Is Busing Necessary?, 53 COMMENTARY 39 (1972). See generally The Courts,
Social Sciences and School Desegregation, part II, 39 LAW & CONTEMP. PROB. 217 (1975). The
retraction by its author of the "Coleman Report" has had substantial impact. J. COLEMAN, EQUALITY OF
EDUCATIONAL OPPORTUNITY (1966).
282. E.g., Bell, Waiting on the Promise of Brown, 39 LAW & CONTEMP. PROB. 341 (1975); see
Norwalk CORE v. Norwalk Bd. of Educ., 423 F.2d 122 (2d Cir. 1970).
283. In 1957 Governor Faubus of Arkansas attempted to block the desegregation of Central High
School in Little Rock. See Cooper v. Aaron, 358 U.S. 1 (1958).
284. Id. at 12-13, See generally Pollitt, Presidential Use of Troops to Execute the Laws: A Brief
History, 36 N.C. L. REV. 117 (1958).
285. The Busing Dilemma, TIME, Sept.. 22, 1975, at 7; see Glazer, supra note 281; Coleman,
Integration, Yes: Busing No. N.Y. Times, August 24, 1975, § 6 (Magazine), at 10; note 2 supra and
legislation was eviscerated in Congress and judicially nullified,286 as had been similar legislation in the Civil Rights Act of 1964.287 But in 1974 President Ford signed into law new legislation purporting to forbid court-ordered busing,288 and by 1976 the Republican party could list as a goal of its platform a constitutional amendment to make busing impermissible.
The problem of benign reverse discrimination, meanwhile, has become entangled with the problem of assignment of schoolchildren on the basis of race,289 the recent grant of certiorari in Bakke v. Regents of the University of California290 casts a pall on discussions about the continued vitality of Swann. Moreover, an overwhelming picture of failure in school desegregation has emerged. Despite an optimistic report of the United States Civil Rights Commission,291 the schools in our nation's inner cities somehow have become hopelessly segregated.292 What little has been accomplished is often attributed to the occasional withholding of federal funds under the Civil Rights Act of 1964 rather than to the ongoing struggle in the federal courts.
Given this background, it is not surprising that retreat did come in the matter of school desegregation. The unanimity of the Supreme Court broke in 1972,293 although the ruling was nevertheless for the plaintiffs. In the 1973 Keyes case, while again ruling for the plaintiffs, the Court made clear that de facto segregation without proof of intent could not be remedied by the federal judiciary.294 And, in the same Term, the Court for the first time turned away without remedy a class of school desegregation plaintiffs who had demonstrated the defendant school board's discriminatory intent.295 Today the retreat is in full force. In City of Pasadena v. Spangler,296 the Court, purporting to reserve the issue, washed its hands of the white flight problem, refusing to permit a federal trial judge to reintegrate a school after white emigration had dismantled the desegregation that litigation had achieved. In San Antonio School District v. Rodriguez,297 the Court left the states virtually free of constitutional compul- sion to eliminate disparities in school funding based on disparities in community wealth. Taken together with the
accompanying text. See generally Chronology of Search for Busing Alternative, The Boston Globe, May
20, 1976, at 20, col. 1.
286. Education Amendments of 1972, § 803, 20 U.S.C. § 1653 (Supp. V. 1975); Drummond v.
Acree, 409 U.S. 1228 (1972) (Powell, Circuit Justice).
287. Civil Rights Act of 1964. Title IV, 42 U.S.C. § 2000c-6 (1970); Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1, 16-18 (1971).
288. Education Amendments of 1974, 20 U.S.C. § 1701-1758 (Supp. V. 1975).
289. See generally N. GLAZER, AFFIRMATIVE DISCRIMINATION (1975).
290. 18 Cal.3d 34, 553 P.2d 1152, 132 Cal.Rptr. 680 (1976), cert. granted, 45 U.S.L.W. 3570
(Feb. 22, 1977).
291. U.S. COMM'N ON CIVIL RIGHTS, FULFILLING THE LETTER AND SPIRIT OF THE LAW (1976).
292. See Delaney, Chicago Segregation Figures, N.Y. Times, April 13, 1977, at 14, col. 4.
293. Wright v. Emporia City Council, 407 U.S. 451 (1972) (segregated system may not maintain
itself by carving our new school district).
294. Keyes v. School Dist. No. 1, 413 U.S. 189 (1973).
295. Milliken v. Bradley, 418 U.S. 717 (1974). For the sequel, see note 325 infra.
296. 427 U.S. 424 (1976).
297. 411 U.S. 1 (1973).
Court's recent refusals to permit relief in exclusionary zoning cases,298 and its disapproval of interdistrict remedies not only in school desegregation299 but also in fair housing cases,300 these new rulings carry a disturbing message, In effect, they have locked black children into segregated schools without prospect of escape and have gone so far as to stifle even their attempts to improve the quality of those schools, returning them to a condition that prevailed prior to Plessy v. Ferguson:301 "'separate' but 'inferior.'"302 Meanwhile, the Court has tightened the burden of proof for these cases, vacating comprehensive desegregation decrees because of supposed defects in the proof of intent.303 And the Court has granted certiorari to review the Detroit304 and Dayton305 cases, stirring fresh speculation and concern.
Against this background, the notion that the Supreme Court might consider an application of some analog of Rizzo to shift this litigation from federal to state dockets306 cannot be dismissed out of hand. An overruling of Brown v. Board of Education, of course, is out of the question. The Supreme Court is not about to authorize Jim Crow legislation. Nor could the Court substantially limit Brown without putting itself in the gross posture of abandoning the black children it has taken under its wing so determinedly and for so long. For these reasons a substantive attack is not likely, but it is also for these reasons that a procedural one is much more likely. Indeed, the Court's retrenchment thus far has taken the form of a procedural nibbling away at Brown II: reducing the scope of federal equity and increasing the burdens of proof. When the first "giant step backwards" was taken in Milliken,307 and an interdistrict remedy was held impermissible, the separate opinions of the badly divided Court were heavily larded with references to problems of federalism. A procedural final solution along the lines of "principles of federalism" seems a real possibility.
B. The Implications of Rizzo for School Desegregation
298. E.g., Warth v. Seldin, 422 U.S. 490 (1975); Village of Arlington Heights v. Metropolitan
Hous. Auth., 97 S.Ct. 555 (1977).
299. Milliken v. Bradley, 418 U.S. 717 (1974). For an acute example, see Metropolitan School
Dist. of Perry Township v. Buckley, 97 S.Ct. 800 (1977); other cases cited in note 5 supra.
300. Village of Arlington Heights v. Metropolitan Hous. Auth., 97 S.Ct. 555 (1977).
301. 163 U.S. 537 (1896).
302. Milliken v. Bradley, 418 U.S. 717, 761 (1984) (Douglas, J., dissenting).
303. Metropolitan School Dist. of Perry Township v. Buckley, 97 S.Ct. 800 (1977); Austin Indep.
School Dist. v. United States, 97 S.Ct. 517 (1976); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424
(1976); Milliken v. Bradley, 418 U.S. 717 (1974).
304. Milliken v. Bradley, 97 S.Ct. 380 (1976).
305. Dayton Bd. of Educ. v. Brinkman, 97 S.Ct. 782 (1977).
306. That the Court does not see its limiting rulings as constitutionally required, and indeed is
anxious for Congress to shift to administrative agencies some of the tasks now performed by federal trial
judges, is apparent from Hills v. Gautreaux, 425 U.S. 284 (1976), in which the Court recognized that
Congress validly had conferred on HUD power that the Court held beyond the scope of federal equity in
Village of Arlington Heights v. Metropolitan Hous. Auth., 97 S.Ct. 555 (1977). See Fitzpatrick v. Bitzer,
427 U.S. 445 (1976) (Congress has power to override 11th amendment); Warth v. Seldin, 422 U.S. 490
(1975) (standing rules in part are prudential only, thus Congress has some power to confer standing).
307. Milliken v. Bradley, 418 U.S. 717, 783 (1974( Marshall, J., dissenting).
It is difficult to put Rizzo side by side with some of the school desegregation cases just reviewed.308 In particular, the language in Rizzo on the scope of federal equitable control over local government agencies will not square with the powers federal trial judges have exercised in school desegregation cases. Unless the Court means that a federal trial judge can take all the heroic measures of the past, but for some reason may not order the school board to establish an ombudsman's office to handle minority parents' complaints about the way desegregation is going, Rizzo sets the stage for a more restrictive approach altogether.
The simples thing for the Court to do would be what was done in Rizzo to deny access to federal courts, perhaps using language about scope to cut off availability.
An illustrative analogy may be seen in the case of Huffman v. Pursue, Ltd.309 There, in an action for a stay of state proceedings to close the plaintiff's theatre as a public nuisance, the federal district court was able to shape its stay order so that it remedied only the constitutional violation proved; the court enjoined enforcement of the statute only with respect to those films that had not yet been adjudged obscene. Nevertheless, the Supreme Court reversed and remanded for reconsideration, citing Younger v. Harris.310 The Younger defense prevailed although a constitutional violation was proved and the remedy limited in scope to the proved violation. This is the sort of control that the new "principles of federalism" defense could give to the school desegregation dockets of federal courts. And precisely because the new defense is applied blindly and without analysis in Rizzo it seems to contain no conceptual barriers to application that seriously could inconvenience a Supreme Court bent on applying it in the new context.311
One can envision an opinion in which the Supreme Court reverses a court of appeals judgment affirming a modest school desegregation decree. The Court would begin with strong reassurances about the continued vitality of Brown v. Board of Education. But it would point with pride to the great accomplishments of the federal trial judiciary under Brown II, and state that it was time for that work to come to an end. In view of changed circumstances and the intrusiveness of federal decrees, principles of equity, comity and federalism required that henceforth, absent extraordinary circumstances, a federal trial court stay its hand. The state courts, primary guarantors of constitutional rights, would be invited to take up this task, under the benign supervision of the Supreme Court on certiorary.
But here, just as in Rizzo, the Court would be effectuating the national interest in dual federalism without making any separate accommodation for the continuing national interest in federal enforcement in these cases. The national interest in school desegregation remains acute.
308. See text accompanying notes 267-78 supra.
309. 420 U.S. 592 (1975).
310. Id. at 612.
311. Plaintiffs might argue that in alleging discriminatory intent they were alleging "bad faith" or
"extraordinary circumstances," i.e., making a Younger showing. But Younger's "bad faith" test seems
only to work in the context of testing the adequacy of a state forum. See note 100 supra. Moreover, it
would be difficult for the plaintiffs to argue that federalism blocked an injunction only when a prima facie
case was not made out; the new defense obviously would be superfluous where a prima facie case had not
been made out. Runyon v. McCrary, 427 U.S. 160 (1976), which discussed the difference between a
prima facie showing of intent to discriminate and a showing of "bad faith" that would justify an award of
attorney's fees, see note 257 supra, shows how easily such a distinction can be made.
The fact that these problems are today more complex than when Brown v. Board of Education was decided only underscores the need for a continued national interest in dual federalism without making any separate accommodation for the continuing national interest in federal enforcement in these cases. The national interest in school desegregation remains acute. The fact that these problems are today more complex than when Brown v. Board of Education was decided only underscores the need for a continued national effort to overcome them in all courts, state and federal. Our multiracial society must find a modus vivendi or face some unthinkable crisis. AS the first Justice Harlan wrote so long ago in his Plessy dissent, "The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under sanction of law."312
Of course, the state tribunals must play a part.313 But the presumption that state courts will vindicate every constitutional right breaks down, and has always broken down, when the question is the race question. That is why Congress struck the balance in favor of providing the option of a federal forum in section 1983. And the Supreme Court chose to place the administration of school desegregation in the federal trial courts in Brown II.
The national interest in continued federal enforcement in these cases is given added emphasis by a recognition that, quite apart from the national interests in vindication of constitutional rights and in racial peace, at stake also is our perception of the Court and perhaps of ourselves as a nation. I have said that a substantive retreat would be unthinkable for the Supreme Court and that a procedural retreat based on "principles of federalism" might be thought to furnish a simple technique for a Court seeking to clear desegregation cases from federal dockets. But I have no doubt that the procedural retreat would be tantamount to a substantive one and would be so perceived, just as other recent denials of access to federal remedies have been perceived: as assaults on the rights of those to whom access was denied.314
C. Postscript: Another Counterargument
There is a line of judicial reasoning that takes into account the nature of public perception of a governmental retreat on the racial question and that supports a continued firm position in the Supreme Court even in a case where "principles of federalism" might otherwise seem to the Court to justify a denial of access to federal injunctive power. The strongest recent expression of this concern is Justice Stevens' concurrence in the case of Runyon v. McCrary, 315 a private school admissions case decided last Term. There, Justice Stevens reluctantly decided to go along with the majority in extending the rationale of Jones v. Mayer316 to hold that Congress, under the 13th amendment, could provide in the Civil Rights Act of 1866317 a cause of action for the intentionally discriminatory conduct of private schools. He wrote:
The policy of the Nation as formulated by the Congress in recent years has moved constantly in the direction of eliminating racial segregation in all sectors of
312. Plessy v. Ferguson, 163 U.S. 537, 560 (1896) (Harlan J., dissenting).
313. See note 200 supra.
314. See note 8 supra.
315. 427 U.S. 160, 189 (1976).
316. 392 U.S. 409 (1968).
317. 42 U.S.C. § 1982 (1970).
society. This Court has given a sympathetic and liberal construction to such legislation. For the Court now to overrule Jones would be a significant step backwards, with effects that would not have arisen from a correct decision in the first instance. Such a step would be so clearly contrary to my understanding of the mores of today that I think the Court is entirely correct in adhering to Jones.318
So also might a significant step backwards in federal judicial administration of school
desegregation be contrary to the mores of today. This notion of the unseemliness of governmental retreat from a prior antidiscriminatory stance is not a stranger to our jurisprudence. An important instance is the case of Reitman v. Mulkey.319 There, California sought by constitutional amendment, authorized by referendum, to repeal preexisting fair housing laws. In striking down the state's repeal of its own laws, Reitman reflects a concern with the unseemliness of governmental retreat on the discrimination issue. Although the Supreme Court can never be supposed to harbor the sort of discriminatory intent imputed in Reitman to the voters and legislature of California, Reitman has strong resonance for the question whether federal trial courts should abstain from adjudication of school desegregation cases. The repeal in Reitman was struck down because it was a governmental retreat from a prior antidiscriminatory stance and as such was an enmeshment of the government in the discriminatory choices of its citizens.320 To have permitted this would have taken a heavy toll of American ideals.
These considerations suggest that school desegregation cases are within that narrow class of cases as to which no problems of federalism could justify a refusal to adjudicate. This is not to say that problems of federalism in these cases are not severe but rather that such problems should be considered in framing relief, not on motion to dismiss.
For example, the acute current problem of "innocent" third persons in these cases, parents and children alike, very possibly can be accommodated only by liberal permissions to intervenors and invitations to community representatives to participate in the formulation of desegregation plans. But the existence of this sensitive issue is no warrant to abdicate jurisdiction. Nor should the problems of federalism raised by orders like Judge Garrity's receivership order in the Boston case justify adkicaiton of jurisdiction; indeed, in the circumstances of that case the order was held to be a proper exercise of federal injunctive power.321 The issues of state political and fiscal autonomy at present before the Supreme Court
318. 427 U.S. at 191 (Stevens J., concurring).
319. 387 U.S. 369 (1967).
320. Id. See also Hunter v. Erickson, 393 U.S. 385 (1969) (repeal by referendum of Akron's fair
housing ordinance); Bradley v. Milliken, 433 F.2d 897, 092-03 (6th Cir. 1970) (unseemliness of
legislative delay in implementing school board's uncoerced integration plan for Detroit); Holmes v.
Leadbetter, 294 F.Supp. 991 (E.D. Mich. 1968) (enjoining open housing referendum). But see Dayton
Bd. of Educ. v. Brinkman, 45 U.S.L.W. 4910, 4912 (June 27, 1977) (distinguishing Reitman and
upholding repudiation of previous board's resolution).
Similarly in Katzenbach v. Morgan, 384 U.S. 641 (1966), the Court suggested that Congress in
using its 14th amendment enforcement powers could make discriminations in extending the franchise that
would be invidious were Congress attempting to restrict the franchise.
321. Morgan v. McDonough, 540 F.2d 527 (1st Cir. 1976), cert. denied, 45 U.S.L.W. 3460 (Jan.
11, 1977).
in the Detroit case322 ought in the same way to be accommodated only in limits on the scope of the decree.
If, on the other hand, the Supreme Court decides that, in the absence of extraordinary circumstances, a federal trial court may no longer inject itself by injunctive decree into the affairs of local school boards, it will be time for Congress to act. Congress has full authority to buttress the section 1983 jurisdiction of the federal courts.323 Congress ought to act to make clear that a federal trial court cannot decline to exercise its section 1983 jurisdiction on grounds of comity or federalism alone.
For the present, it is time for the Supreme Court to reconsider its current course. Rizzo's incautious assault upon the foundations of modern judicial federalism would return the Union to an allocation of powers that the Civil War was fought to change and which only demonstrably happier social conditions in our country could justify. It is hoped that the Court will take stock of the damage already done324 and stop short of the point at which Rizzo advances its tentative but potentially annihilating proposal.325
322. Milliken v. Bradley, 97 S.Ct. 380 (1976).
323. U.S. CONST. art. I, § 8; id. art. III, §§ 1 & 2; id . amend. XIV, § 5.
324. See notes 5, 6, 9, & 10 supra.
325. The Court handed down its opinions in the Detroit desegregation case, Milliken v. Bradley,
45 U.S.L.W. 4873, and in the Dayton desegregation case, Dayton Bd. of Educ. v. Brinkman, 45 U.S.L.W.
4910, on June 27, 1977. In both cases the Court unanimously declined to fashion new limits on federal
remedial power in school desegregation cases. The Court was able to vacate the comprehensive Dayton
decree using its prior jurisprudence on "intent" and "scope of the violation," see notes 5 and 6 supra,
although observers had feared, since the Dayton decree seemed well-founded to them, that it was the
Court's purpose to propose fresh limits on federal remedial power.
In the Detroit case, however, the trial judge's decree was sustained. The Court came to grips with
the federalism issues raised, and gave some content to "principles of federalism." There, the trial judge
had "virtually assumed the role of school superintendent and school board," 45 U.S.L.W. at 4882 (Powell,
J., concurring), and had, in effect, "appropriated funds from the state treasury" for expensive remedial
educational programs; id. n.4. The Court squarely held that federal decrees with impact on the state
treasury (here, an estimated $5,800,000) were permissible under Ex Parte Young and Fitzpatrick v. Bitzer,
427 U.S. 445 (1976), and limited its ruling in Edelman v. Jordan, 415 U.S. 651 (1974). See text
accompanying note 224 supra. It held that "principles of federalism" were not offended by the district
court's assumption of power and the appropriation from the state treasury: The trial judge had not
attempted "to restructure state governmental entities"--Rizzo was not alluded to--or to dictate a particular
method of financing (citing the Texas school financing case, San Antonio Indep. School Dist. v.
Rodriguez, 411 U.S. 1 (1973)).
Although the Court has stepped back from the brink of a final application of "principles of
federalism" to overturn Brown II and unburden itself of the school desegregation problem, unfortunately
the Court's discussion preserves the issue for future ad hoc application. Based on Milliken II, it will not
be clear for some time just when a federal decree must be struck down under Rodriguez and Rizzo, or
sustained under Milliken II.